Sudan: Darfur

Baroness Cox: asked Her Majesty's Government:
	What is their response to recent developments in Sudan, with particular reference to Darfur.

Lord Triesman: My Lords, we are extremely concerned about the situation in Darfur. We are making it clear to the Sudanese Government and the armed rebel groups that they must stop fighting immediately. The Government must also accept a UN force for Darfur and the bolstering of the African Union force until the UN can arrive and they must restart the political process with the non-signatories to the Darfur peace agreement. We are urging international partners to take the same line.

Baroness Cox: My Lords, I thank the Minister for that reply. Given the continuing, horrifying escalation of death and destruction, with 300,000 to 400,000 people now dead and 90 per cent of villages in Darfur destroyed by the National Islamic Front regime's genocidal policy, does he agree that the time has now come for the consideration of serious measures, such as targeted sanctions or the refusal of visas to the regime's representatives, instead of, as at the present moment, giving invitations to the chairman of the Khartoum Stock Exchange, who is in London at the invitation of the Foreign Office? How long are this Government going to continue to do business with a regime that kills while it talks?

Lord Triesman: My Lords, there are already United Nations decisions on sanctions and there is no doubt, as matters stand, that there will be a need for further consideration of further sanctions against a wider group of people. The other critical issue has been to establish a viable African Union force to keep the peace, as far as that is possible, across Darfur. On20 September, that process looked impossible, but it had been achieved, at least in outline, by the end of that week. That force has to be capable of doing the job of protecting the people of Darfur until the United Nations can take over the responsibility, as it must.

Lord Howell of Guildford: My Lords, the Minister spoke about making the situation clear to both sides, but is it not obvious, and did not the comments of the noble Baroness, Lady Cox, make it even clearer, that this is not a level killing field with two sides locked in deadly combat and that the Government in Khartoum do not care anything for their citizens, are bent upon encouraging the most appalling atrocities and are continuing to do so in defiance of world opinion? Is it not indeed time that very much firmer sanctions were mobilised against the Khartoum Government and more were pressed for in the United Nations? What will happen when the African Union mission ends, which is any day now in September and October, when the UN mission will come, at the earliest, in January? How will the killing going on in the mean time be stopped unless we have a really firm grip on the Khartoum Government of the kind that is so far lacking?

Lord Triesman: My Lords, for the sake of clarity, the agreement that was reached with the African Union in New York, to which I was a party, means that its mandate has been extended until the end of December with a significant improvement in United Nations assistance. I can say from overnight discussions that there has been agreement with, at least, President al-Bashir about what the United Nations' additional assistance should be. That is a small step forward.
	I do not dissent at all from the view that there are the most serious crimes and breaches of the agreements that the Government of Sudan voluntarily entered into, but it is also true that rebel groups are killing widely. This is a war between a number of parties, and our task must be to get them all to sign the peace agreement, from which many absented themselves.

Lord Archer of Sandwell: My Lords, do the Government agree with the analysis of the International Commission on Intervention and State Sovereignty in 2001 that the primary responsibility for protecting human rights lies with the Government concerned, that if the Government fail to discharge that responsibility it passes to the Security Council and that if the Security Council fails adequately to act, the question arises of whether the greater harm lies in the damage to international order of bypassing the Security Council or in the slaughter of human beings while the international community looks on? If the third of those situations arises, does my noble friend agree with Mr Kofi Annan that not even the principle of national sovereignty can protect crimes against humanity?

Lord Triesman: My Lords, in the meeting that preceded the United Nations General Assembly last year, the world community agreed that a responsibility to protect should be part of the operating code of the United Nations. That means that the first responsibility is with the Government concerned and then it passes, irrespective of sovereignty, to the international community. In Security Council Resolution 1706, drafted by the United Kingdom, that is explicitly written into the terms of the decision by the Security Council, taken without a vote against and with three abstentions. In the final analysis, the Security Council—and the United Nations—will be tested by whether it takes that responsibility seriously with the full implications that it bears.

Lord Avebury: My Lords, I am sure the Minister will have seen President Obasanjo's reference to impending genocide and his offer of additional Nigerian troops for the African Union force. In view of the implacable refusal by Khartoum to allow the United Nations to take over the operation, will the international community do better to concentrate on AMIS Plus, with the possibility that the UN might lend military units to AMIS, and more robust rules of engagement so that it can adequately protect the civilian population?

Lord Triesman: My Lords, our position is that the United Nations needs to take over this operation, but the fact is that there would be an interregnum—and there would have been one from the end of December through to 1 January if AMIS had not been prepared to step in with additional assistance, as I said a few moments ago—from the United Nations. Bolstering that force should be done in a way that is compatible with a transition to UN. I believe that the international community has an obligation to put all pressure on the Government of Sudan to agree to a UN force, and all pressure on the other rebel groups to sign the peace treaty, which they could have signed several months ago and spared many thousands of lives.

The Lord Bishop of Coventry: My Lords, is the Minister aware that there appears to be a concerted campaign by the Khartoum Government to muzzle the freedom of the press in northern Sudan? Does he agree that this is a violation of the terms of the interim constitution and that it also seriously undermines any attempt at democratic transformation?

Lord Triesman: My Lords, I completely agree. It is one of a catalogue of areas in which the Government in Khartoum disregard any form of international pressure. They are in breach of the peace agreement they signed just a couple of months ago in every military action that they have embarked on in these past few months.

Baroness Park of Monmouth: My Lords, can we be sure—

Lord Rooker: My Lords, I am sorry. We are well into the ninth minute now.

Iraq

Lord Garden: asked Her Majesty's Government:
	Whether they expect to publish a report on the lessons learnt from operations in Iraq since 1 May 2003, and if so when.

Lord Drayson: My Lords, the Government have already published two reports on lessons from Iraq. These were Operations in Iraq: First Reflections, published in July 2003, and Operations in Iraq: Lessons for the Future, published in December 2003. Internal analysis continues, but the Government do not currently have any plans to publish further reports on this matter.

Lord Garden: My Lords, I trust that the Minister has read the Wall Street Journal this morning, which reports that a new US medical academic survey estimates that there have been around 600,000 Iraqi deaths from violence since March 2003. We have had no updated lessons-learnt report in the last three years, as he has just told us, but we need to learn the lessons if we are not to make the same failures in the future. When will there be an update?

Lord Drayson: My Lords, I have not read the Wall Street Journal report to which the noble Lord refers; I will read it when I return to the department. As I said in my original Answer, there is an ongoing process of analysis within the Ministry of Defence. There are no current plans to publish the outcomes of that analysis. However, if that situation changes, I will inform the House.

Lord Astor of Hever: My Lords, can the Minister confirm that lessons learnt from the operations have been applied in practice?

Lord Drayson: Yes I can, my Lords, and I will give some examples from both an operational and an equipment standpoint. What we are doing operationally today in Baghdad and Basra—Operation Sinbad—is a neighbourhood-by-neighbourhood clearance of the sectarian killers, with reconstruction on a neighbourhood basis, which is having real success. The chair of the Basra security council, Hammadi, has been out on the streets with the local press, pointing out what has been done to develop local schools. On equipment—just to give one example—improvements in the accuracy of our munitions to reduce collateral damage and investment that we have put into communications have had a big impact on the effectiveness of our operations, which has been reflected on the ground.

Lord Soley: My Lords, I am not sure that the Minister can answer this, but I shall ask it nevertheless. Is it not common sense and common knowledge to most of us now that Iraq will go down in history as an example of how to win a war and lose the subsequent peace? That happened because when Colin Powell was talking about the post-conflict situation, he was increasingly marginalised and power went to Donald Rumsfeld, with the result that there was no post-conflict plan in operation, which left us very exposed in the south of Iraq. We have all paid a very high price for that. That is the lesson, and it is a very important one, not least because there will be other times when we have to intervene, as the previous Question exemplified.

Lord Drayson: My Lords, my noble friend makes a very good point. Those points have been reflected in the lessons-learnt documents published by the department. It is fair to say that we are very concerned about the situation that we face in Iraq today. Concern is mainly focused on the difficulties that we have in the cities, primarily Baghdad but also Basra. It is correct to say that we had a successful operational campaign in March 2003, which we expected more rapidly to become a peacekeeping operation; we did not expect to have an extended counter-insurgency operation such as we have been faced with. However, we are responding to that from the lessons that we have learnt on the ground and we are seeing progress in the reconstruction effort. A million people in Basra now have electricity and water 24 hours a day. That was not the case a year ago, or five years ago.

Lord Marsh: My Lords, but do the Government, the United States or anyone yet have any evidence of a clear exit strategy from one of the biggest tragedies that mankind has faced for many long years?

Lord Drayson: My Lords, we absolutely have a clear exit strategy. Our strategy is to support the Iraqi security operations—the police and the army—in creating an environment where governance and reconstruction can take place. We have seen that that has worked. This summer, two provinces have been successfully handed over to the Iraqi security forces. We hope that the situation will allow us to hand over a third province. However, the key is the progress that we are able to make in Basra and Baghdad. That is where the main challenge is and that is where we are focusing our attention, but our strategy has not changed. We are following a clear process that is shown to work.

Lord Dykes: My Lords—

Lord Blaker: My Lords, is not the lesson of the Iraq war that when Her Majesty's Government differ with the United States on an important issue of policy, they should press their case more vigorously than they did this time?

Lord Drayson: My Lords, Her Majesty's Government's policy on Iraq is clearly to work with our coalition partners to support the development of the country as a democratic state. We have seen how the Iraqi people have responded to that in two general elections and the establishment of a constitution. There is no doubt that the Iraqi people want the country to progress but, as has been said, there is tremendous sectarian violence between the Sunnis and the Shia. We have to stick with this. We have seen progress in a number of provinces. The main area of difficulty is within the cities. We have a tactical plan which, in the early days, is working. We need to stick with that through the coming months.

Baroness Symons of Vernham Dean: My Lords, does my noble friend agree that any publication about any shortcomings must be consistent with the safety of our troops on the ground at the moment? The idea of publishing something that feeds a media frenzy rather than serving the real purposes of our troops serving on the ground in Iraq would, for many of us, be a tragedy.

Lord Drayson: My Lords, I am grateful to my noble friend. She is absolutely right; there is obviously a real limitation to the detail into which we can go. Having spoken to operational commanders and troops on the ground, I must say that they find it difficult that the emphasis is on the difficulties and that no real recognition is given to the progress that has been made. The feeling, which is shared by people in DfID, is that the progress that has been made on the reconstruction effort in very difficult circumstances is not properly reflected in the discussion.

Somalia: Peacekeeping

Lord Avebury: asked Her Majesty's Government:
	What representations they have made to the Government of Somalia concerning the possible deployment of peacekeeping forces by the African Union or a coalition of African states, and what is their assessment of the legality of such a force.

Lord Triesman: My Lords, the African Union has approved a proposal by members of the Intergovernmental Authority on Development—IGAD—to deploy a peace-support mission to Somalia. On 13 July 2006, the UN Security Council confirmed its willingness to consider whether a peace-support mission would contribute to peace and stability in Somalia on receipt of a detailed plan from IGAD. We will participate actively in this consideration. I have had discussions with the transitional federal government representatives on this subject and the subject of trying to sustain current peace negotiations.

Lord Avebury: My Lords, has not the situation changed since the Islamic Courts Union declared a jihad against any foreign forces entering Somalian territory, including the deployment of IGADSOM, as has been decided by the African Union Peace and Security Council? Does the Minister consider there to be any scope for a discussion between the AU and the Islamic Courts Union on a variation of the proposal that would be acceptable to them, either in terms of the states that are providing forces or in the terms of reference of the mission? Will it be explained clearly to the Islamic Courts Union that if it does not agree to such a mission, the likelihood is that President Abdullahi Yusuf will call on the Ethiopian forces to help to protect him?

Lord Triesman: My Lords, the peace discussions in Khartoum are about to enter a third phase, and there have also been useful contacts in the past couple of weeks in Nairobi. The aim of the peace discussions is to provide the conditions under which a peace-support operation would work successfully with the agreement of all parties in Somalia. It remains quite clear to me that if the Islamic Courts Union cannot accept peace proposals, the Security Council will have to consider very urgently the decisions taken by the front-line states on security in the region.

The Earl of Onslow: My Lords, are the Americans supporting the warlords in Somalia? If so, will Her Majesty's Government make representations to them to stop? The trouble in Somalia was caused by gangs of warlords shooting people up and engaging in total mayhem. Even a strongly Muslim Government would be more peaceful and more preferable to what has gone before.

Lord Triesman: My Lords, I think the noble Earl is referring to an allegation some while ago that the United States had supported several warlords and their armed militias. Whether or not people think that this is the best outcome for Somalia, the move of the Islamic Courts Union against the warlords has more or less taken them out of any part of the equation, as matters stand. The problems now lie principally between the transitional federal Government of President Yusuf—the only Government who are supported by the United Nations as the legitimate Government—and the Islamic Courts Union.

Lord Howell of Guildford: My Lords, what is the Minister's assessment of the Islamic Courts Union and its medium-term aims? It has been suggested that it wants to create an Islamic state, and that it has links with various fundamentalist extremist groups, including al-Qaeda. Is that a danger? Are we seeing the emergence of yet another failed state and source of terrorism, or could the Islamic Courts Union provide the stability that my noble friends have suggested?

Lord Triesman: My Lords, I do not think that the Islamic Courts Union is a homogenous body in any sense. It contains some elements which are moderate and plainly disposed towards the peace negotiations that I have described. It contains some elements—they may be in the ascendancy at the moment—which I would describe as being on the end of the politics of al-Qaeda and very dangerous. The reality is that we must make sure that moderate parties on both sides—the transitional Government and the Islamic Courts Union—engage in discussions and try to get to a new balance between the different forces. It would be of no benefit to this country to see the kind of takeover of Somalia which would create a further serious international security problem.

Baroness Park of Monmouth: My Lords, is the mandate of the African Union in such a situation solely to observe, as it has been in Darfur where it has not been able to protect the people at all? Is it in any way likely that either it or any subsequent force would have any power of intervention? Is it only to observe and report what we are constantly hearing?

Lord Triesman: My Lords, there are two important questions in the noble Baroness's supplementary question. First, the precise purpose of an IGAD force, were it to be introduced in Somalia, would have to be agreed with the Security Council. Its mandate could include anything that the Security Council deemed appropriate. If it is introduced, I would hope that it would be sufficiently robust to do the job properly. On the second question, which requires some comment, the mandate that the AMIS force has in Darfur could and should have been used far more extensively than just for observation. At the beginning it was.

Influenza Vaccine

Lord Harrison: asked Her Majesty's Government:
	What is the impact of the sale of influenza vaccinations in supermarket pharmacies on the availability of such vaccinations to vulnerable groups.

Lord Warner: My Lords, the distribution of influenza vaccine started in September. By the end of November, 13 million doses will have been delivered to GPs. This represents nearly 90 per cent of the total available vaccine. A further 2 million doses will be delivered by the end of December, making more than 1 million more doses available than were used last year. The UK Vaccine Industry Group has informed us that 97 per cent of influenza vaccine is provided for the NHS with a maximum of 3 per cent going to private sales, a figure that has remained stable over recent years.

Lord Harrison: My Lords, I thank my noble friend for that illuminating Answer. But given that supermarket pharmacies, certainly in Cheshire, are selling flu jabs to the general public for £15, can he assure us that GPs will receive these important vaccines? I declare an interest as my local GP has not yet received them. Can the Minister again state that the Government's priority is that those in vulnerable groups should be treated first?

Lord Warner: My Lords, of course I can. The Government have already exceeded the 75 per cent vaccination of high-risk groups which the World Health Organisation recommended for 2010—they did it last year, and we are continuing along that path. It is for GPs to order their vaccines from the supplier; they do not do it through the Department of Health. As I said, a maximum of 3 per cent is available for private sales, which is meant to ensure that high-risk groups for vaccines go to their GPs for vaccination.

Baroness Neuberger: My Lords, why, every year at this time, do we seem to have a Question or two or three on this subject? Why does there seem to be, for GPs in their practices, always a shortage at this time of year? This is not the first time that we have heard that there has been private supply available when some NHS practices have not had it. Perhaps the Minister can explain why we cannot get vaccines to GPs faster.

Lord Warner: My Lords, there was a problem in the manufacture of vaccines this year where the reagents used did not produce vaccine fast enough. That was a manufacturing problem and nothing to do with the Government or with NHS management. It was an international problem affecting not just this country but all countries. That is the explanation for the slow delivery this year. I think that what has happened is that a rather excitable story appeared in the Daily Express, which was fully briefed on this, about private sales of flu vaccine. They are running at the same level this year as they have in previous years.

Lord Walton of Detchant: My Lords, the present influenza vaccine now being distributed has no possibility of protecting against a potential bird flu epidemic. While the prospect of a pandemic appears to have receded, can the Minister tell us what progress has been made in producing a vaccine against the H5N1 influenza virus strain?

Lord Warner: My Lords, the research industry continues to work in this area. In order to provide an effective vaccine against a pandemic flu, you have to know what the strain is in the first place. However, the Government have put in place a strong pandemic flu plan, including stockpiling antivirals should that unfortunate event actually occur.

Baroness Sharples: My Lords, can the noble Lord tell us how much doctors pay for the vaccine?

Lord Warner: My Lords, that is a matter between them and the manufacturers.

Lord Berkeley: My Lords, given the coverage we have seen in the media this morning of supermarkets around the country providing vaccine, and since my noble friend has said that the vaccine is fully available in those supermarkets, why do not the doctors buy the jabs from the supermarkets?

Lord Warner: My Lords, let me correct my noble friend. I did not say that the vaccine is available in all supermarkets. I said that 3 per cent of the total supply for this winter might be available in supermarkets and other private pharmacies for purchase. It is still a free country and if people wish to spend their money on that 3 per cent of the vaccine, provided they are not in the high-risk groups, that is down to them.

Lord Forsyth of Drumlean: My Lords, notwithstanding the fact that what price is paid clearly is a matter between GPs and the manufacturers, what is the answer to my noble friend's question?

Lord Warner: My Lords, I think she needs to ask the GPs.

Parliamentary Costs Bill [HL]

Lord Falconer of Thoroton: My Lords, I beg to move that this Bill be now read a third time.
	Moved, That the Bill be now read a third time.—(Lord Falconer of Thoroton.)

Earl Ferrers: My Lords, I wonder whether I could ask the noble and learned Lord a question; it is one that I have asked him once before and he said he would be kind enough to consider it.
	In the good old days, as one might call them, any business tabled in the name of the then Lord Chancellor was always put down under "The Lord Chancellor". Were that still to apply, this Motion would be under the name of the Lord Chancellor. In fact, it is under the name of the noble and learned Lord, Lord Falconer of Thoroton. That is a great name, but the name "The Lord Chancellor" is an even better one. I wonder why it is that these things have slipped. When I raised the issue before, the noble and learned Lord said that he would consider it. I suppose he probably gave it 30 seconds of his consideration because obviously it has not made much difference. Would he be kind enough to say that he did consider it and that, owing to an oversight, it has been put down in the name "Lord Falconer of Thoroton" when it should be in the name of the Lord Chancellor?

Lord Falconer of Thoroton: My Lords, I did consider it, and indeed the noble Earl wrote me a letter to which I have had the discourtesy not to reply. But because he raised the issue once before and because he wrote the letter, I have given it immense thought. I considered whether the Motion should be in name of the Lord Chancellor, and concluded that it should. It is a Law Commission-inspired Bill and it is something that I do as Lord Chancellor. Therefore, ever after—as a result of the noble Earl's questions and unreplied correspondence, and subject of course to the Table—such Motions will be in the name of the Lord Chancellor. I apologise that it was not done before.

Earl Ferrers: My Lords, I am deeply grateful to the noble and learned Lord, but I am not quite sure whether it takes us any further. This is a Parliamentary Costs Bill in the name of the noble and learned Lord, Lord Falconer of Thoroton, but it ought to be in the name of the Lord Chancellor.

Lord Falconer of Thoroton: My Lords, the reason why I say "ever after" is that there will never be, I fear, another reference to the Parliamentary Costs Bill. This is a consolidating measure. What I am referring to is all the other consolidating measures that will come before us. I am going to make the same error again in about 45 seconds when we consider the National Health Service consolidation Bill. But there will, I hope, be other consolidation Bills, of which these two are examples. Because of the noble Earl's letter and questions, they will ever after be in the name of the Lord Chancellor.

Earl Ferrers: My Lords, I thank the noble and learned Lord even more than I did before. I had not really realised the impact of what he said. I am very grateful to him for having taken this matter into consideration and for having come to such a wise decision.

Lord Falconer of Thoroton: My Lords, no one can say that we are not a listening Government.

Bill read a third time, and passed, and sent to the Commons.

National Health Service Bill [HL]

National Health Service (Wales) Bill [HL]

National Health Service (Consequential Provisions) Bill [HL]

Read a third time, and passed, and sent to the Commons.

Armed Forces Bill

Lord Drayson: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The LORD SPEAKER in the Chair.]
	Clause 11 [Misconduct towards a superior officer]:

Lord Thomas of Gresford: moved AmendmentNo. 31:
	Page 6, line 12, leave out "or disrespectful"

Lord Thomas of Gresford: My first task is to declare an interest as the recently appointed president of the Association of Military Advocates and to indicate that I am currently engaged in a court martial and therefore have some interest in this matter.
	Clause 11(2) sets out an offence in these terms:
	"A person subject to service law commits an offence if ... his behaviour towards a superior officer ('B') is threatening or disrespectful".
	The amendment would remove "or disrespectful".
	The basis of my argument is that threatening a superior officer and being disrespectful to a superior officer are two entirely disparate situations. The huge distinction between making a threat and being disrespectful is recognised by subsection (4), which provides for a maximum of 10 years' imprisonment for the former offence but only two years for the latter one. My objection to the word "disrespectful" is that it is so wide that it could cover anything that an officer believes to be disrespectful to him—dumb insolence, walking away, muttering under the breath and so on. It lacks clarity and could lead to differing decisions depending upon the make-up of the court martial court. Indeed, the Joint Committee on Human Rights was concerned to seek from the noble Lord, Lord Drayson, a definition of "disrespectful".
	Another problem is that there is no statutory defence. It is very interesting to compare this provision with Article 89 of the American Universal Code of Military Justice, which creates a similar offence, but separately from that of being threatening. The code defines the offence in this way:
	"Any person subject to this chapter who behaves with disrespect towards his superior commissioned officer shall be punished as a court-martial may direct".
	But, unlike this proposed legislation, it contains a definition of "disrespect":
	"Disrespectful behavior is that which detracts from the respect due the authority and person of a superior commissioned officer. It may consist of acts or language, however expressed, and it is immaterial whether they refer to the superior as an officer or as a private individual. Disrespect by words may be conveyed by abusive epithets or other contemptuous or denunciatory language. Truth is no defense. Disrespect by acts includes neglecting the customary salute or showing a marked disdain, indifference, insolence, impertinence, undue familiarity or other rudeness in the presence of the superior officer".
	Your Lordships may appreciate my comment that "disrespectful" is an extremely broad idea. There is in the American code, however, a special defence:
	"A superior commissioned officer whose conduct in relation to the accused under the circumstances departs substantially from the required standards appropriate to that officer's rank or position under similar circumstances loses the protection of this article. That accused may not be convicted of being disrespectful to the officer who has so lost the entitlement to respect protected by Article 89".
	Your Lordships may feel that that is a very sensible, special statutory defence. Furthermore, unlike the two-year period of imprisonment that is the maximum for the offences suggested in the Bill, the maximum punishment in America is a bad-conduct discharge, forfeiture of all pay and allowances and confinement for one year.
	Disrespect is a concept that ought not to be linked as a criminal offence with threatening behaviour, which of course is very serious. I cannot think of any instance of being disrespectful which would not be covered by the familiar offence repeated in Clause 19 of conduct,
	"prejudicial to good order and discipline",
	which, incidentally, carries exactly the same penalty. But case law on conduct prejudicial to good order and discipline allows a defendant to argue that he spoke the truth or that his offending words or gestures were not prejudicial to good order and discipline.
	I am indebted to Mr Gilbert Blades, a very experienced solicitor-advocate in this field, for his recollection of a case in which a sergeant called the regimental sergeant-major's argument at a sergeants' mess a load of "unparliamentary language". I will not give your Lordships the precise terms. The sergeant was charged with conduct prejudicial to good order and discipline, and the tribunal found that the regimental sergeant-major's argument had indeed been a load of unparliamentary language.
	The purpose of the amendment is to separate the offence of being "disrespectful"; at the very least it should be clearly defined, and a special defence similar to that set out in the United States statute should be incorporated in it. But since that would take some drafting, I will leave it for a later stage of the Bill. I beg to move.

Lord Kingsland: We have some sympathy with the proposal by the noble Lord, Lord Thomas of Gresford, but I want to be clear about its exact nature. The amendment seeks to remove the word "disrespectful" from the Bill altogether. We are not sympathetic to that; we believe that it has a place in military law. Respect for the commission, and everything that derives from that, is a key part of discipline in our Armed Forces.
	The amendment severs "disrespectful" from "threatening", but does not seek to replace the word in any part of the Bill. Having listened to the noble Lord, Lord Thomas of Gresford, I sense that his rather thorough exegesis of the American law suggests that he might be prepared to entertain the reintroduction of "disrespectful" in some other part of the Bill if it contained both a careful definition and a statutory defence. I see the noble Lord nodding, so that is clearly the direction in which he is going.
	Perhaps I may respectfully suggest to the Minister that the proposal of the noble Lord, Lord Thomas, as he outlined it, is worthy of serious consideration by the Government. We would need to think carefully about it; but we would not be in favour of removing altogether the concept of disrespect.
	Serving in the Armed Forces is unlike any other activity. The notion of respect for superior authority is absolutely vital to operational effectiveness in the field. The notion of disrespect is a component of it. However, the noble Lord, Lord Thomas of Gresford, has rightly raised an important point and we look forward to hearing the Minister's reaction.

Lord Borrie: I felt a great deal of sympathy with the words of the noble Lord, Lord Thomas of Gresford, except on two matters. If my recollection is right, he said that "disrespectful" could include what a superior officer thought was disrespectful. Clause 11 is sufficiently objective, as it states that a person commits an offence if his behaviour "is" threatening or disrespectful. The mere subjective view of a superior officer would not be sufficient.
	The second point on which I quarrel slightly with the noble Lord, Lord Thomas, is in his reference to Clause 19, which sets out the familiar offence of doing something which is prejudicial to good order and service discipline. I recollect that the phrase was "military discipline" in my day, but it is the same thing and the offence is enormously wide in scope. However, I notice that Clause 19 states that an offence is committed only if a person,
	"does an act that is prejudicial".
	Therefore, some of the examples of disrespect given by the noble Lord under Clause 11, which included words which were disrespectful, would not be covered by the existing Clause 19.
	However, the noble Lord's nod in response to the noble Lord, Lord Kingsland, indicated that he does not want just to be negative and to delete "disrespectful", but, ideally, would wish—perhaps it is more appropriate for the Minister to do it than him—to introduce a separate clause as an amendment so that there is a clear distinction between "threatening" and "disrespectful". I entirely agree with the argument of the noble Lord, Lord Thomas, that it is not appropriate to include in the description of the same offence those two, very disparate matters.

Lord Campbell of Alloway: The suggestion is that "disrespectful" must be defined. How on earth do you define it other than as "want of respect"? I do not see where we are going with this. Perhaps the Minister could deal with it.

Lord Drayson: I have listened carefully to the exchanges across the Committee on this matter. It goes to the heart of the ethos of the Armed Forces. An important part of that ethos is to make clear the need for respect towards a senior to support the command relationship. The lack of a definition of "disrespectful" is not a problem, because all members of the Armed Forces are given clear training in how to address their superiors and how to behave towards them. In this context, what amounts to "disrespectful" within the ethos of the Armed Forces is clear.
	Therefore, the concern that the noble Lord, Lord Thomas of Gresford, has relating to the word being too broad and not defined is not in practice an issue that would cause us a problem. We recognise that there is a judgment to be made on the maximum sentence of 10 years, which is a reduction from an indeterminate period of imprisonment in these circumstances, and we think that 10 years is appropriate.

Lord Thomas of Gresford: The Minister should look again at subsection (4), which says that 10 years is the maximum for—no, he is right, in fact. The Bill says that,
	"in the case of an offence ... under subsection (2) of behaviour that is threatening, ten years".
	It does not refer to behaviour that is disrespectful. In that eventuality, the Bill proposes two years.
	I am very grateful for the support that I have had from noble Lords. I shall take the matter away and see whether I can agree with the Government on an appropriate way in which to split "threatening" from "disrespectful", which might be more appropriate and of greater utility in the field of military offences. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 32 not moved.]
	Clause 11 agreed to.
	Clause 12 [Disobedience to lawful commands]:
	[Amendment No. 33 not moved.]
	Clause 12 agreed to.
	Clauses 13 to 16 agreed to.
	Clause 17 [Disclosure of information useful to an enemy]:
	[Amendments Nos. 33A to 34B not moved.]
	[Amendment No. 35 had been withdrawn from the Marshalled List.]
	[Amendment No. 36 not moved.]
	Clause 17 agreed to.
	Clause 18 [Making false records etc]:

Lord Astor of Hever: moved Amendment No. 37:
	Page 8, line 20, after "law" insert ", or a civilian subject to service discipline,"

Lord Astor of Hever: I shall speak also to Amendments Nos. 40, 41 and 201A. Amendment No. 37 seeks a belated response from the Government. My honourable friend the Member for Aldershot in Committee in another place was promised a note clarifying when civil servants are accountable to the military justice system. I would be grateful if the Minister could respond now or in writing to me before Report, as this important issue seems to have slipped through the net.
	Amendments Nos. 40 and 201A deal with the inaccurate certification of service material, which was constructively debated in Committee in another place. Amendments tabled by my honourable friend Robert Key raised important questions about the certification of military equipment. If ships and aircraft are included in the Bill as equipment but must have proper certification, equipment used by the Army should also be included. There is a safety issue here: tanks and artillery guns, along with other equipment, can be dangerous to operate. They must of course be certified correctly, and our amendments seek to achieve that by ensuring that "service material" as defined in Amendment No. 201A is included.
	In Committee in another place the then Minister, Don Touhig, rightly found fault with our initial definition of service material. Therefore, we have provided a revised definition in Amendment No. 201A to the Supply Powers Act 1975 that is based on extant legislation that is sufficiently wide to meet the Minister's concern. The amendment tabled by the noble Lord, Lord Garden, seeks a similar redefinition and we support his objectives, but the Liberal Democrat amendment limits the expansion of applicable equipment to combat vehicles, rather than service material. We have drafted the definition of "service material" to ensure that it is wide enough to cover all applicable equipment. In Committee in another place the Minister gave a clear assurance that the Government would consider this further and that he would write to Committee colleagues. We await with anticipation the Minister's response.
	Amendment No. 41 would insert a new clause entitled "Dangerous conduct", which seeks to clarify how our Armed Forces are affected by health and safety legislation. This was also debated in Committee in another place. Again, my honourable friend the Member for Aldershot was promised a letter. The legislation will apply to our men and women serving on the front line so we must get it right. I beg to move.

Earl Attlee: I remind the Committee of my interest as a serving officer in the TA, subject to military law as I speak. I have tabled Amendment No. 38 in this group. Clearly, it is vital to our democracy that Ministers are honestly and accurately briefed by the military. Noble friends in this House have been led astray because of inaccurate briefing from the military and have had to apologise to the House at the Dispatch Box. My amendment would ensure that a specific offence is committed if Ministers are inaccurately briefed in the way that it describes.

Lord Garden: I have tabled one amendment in this group but I shall speak first to the other amendments. We are generally supportive of those amendments, particularly Amendment No. 37, which proposes that the offence should apply to civilians. However, I have a problem with the aspect of the offence proposed by the noble Earl, Lord Attlee, that connects parliamentary business and the supply of false information. It seems to me that supplying false information to a Minister will probably be a reasonable offence under military law without having to attach additional burdens of proof regarding the parliamentary business aspect.
	Several parts of the Bill deal with what is required of official records. Amendments Nos. 40 and 41, which stand in the name of the noble Lord, Lord Astor of Hever, and which concern records and dangerous conduct, are entirely sensible. My Amendment No. 59 in this group relates to what is covered by inaccurate reporting. Clause 36 is entitled "Inaccurate certification", but it might be much better if we ordered the Bill in such a way as to have all these matters in one place. In any event, we need to realise that the technology is moving on. I accept the comment of the noble Lord, Lord Astor, that even with the inclusion of land combat vehicles the wording may still be too narrow, but we certainly do not want to restrict the provision to aircraft and ships. The technology that is associated with all forms of military activities is becoming highly complex and an audit trail of servicing will be needed to record who has done what to equipment to ensure that everything is all right.
	Amendment No. 201A concerns the definition of "service material". I have a slight worry that it is too narrow; it focuses too much on material used for defence and does not include things that are enabling.
	I am sympathetic to the amendments. I believe that these provisions could be redrafted to make them clearer and to ensure that we have them all in one place, and I hope that the Government will want to do that. That would cover us in future rather than simply repeating what was in the service discipline Acts.

Lord Drayson: Clause 36 creates an offence relating to the signing of false certificates. The certificates are produced as part of the formal maintenance procedures for ships, aircraft and aircraft materials. Amendment No. 59 would extend the offence to cover certificates for all combat vehicles, as the noble Lord has said. We have considered this for land vehicles and equipment. Taking into account the fact that other systems are already in place for land vehicles, we have concluded that it would be excessively bureaucratic to extend such a system of certification to every combat vehicle. We are satisfied that existing systems are adequate. The noble Lord made the point that, as technology changes and vehicles become more complex, this is something that we need to review, but as we stand today we are correct. A failure by service personnel to carry out those checks and inspections effectively can amount to neglect of duty or other offences.
	Amendment No. 37 would apply the offence of making false records to civilians subject to service discipline. We believe that civilians accompanying the Armed Forces should be subject to service discipline only so far as is essential for operational effectiveness and fairness. It would be wrong to make them essentially the same as service personnel when it comes to disciplinary offences.
	Nevertheless, I was slightly tempted by Amendment No. 38, which would provide for up to two years' imprisonment for giving me incomplete information about these amendments. More seriously, it would extend the offence of making false records far beyond the legitimate disciplinary purpose of ensuring that members of the Armed Forces do not make false official records or suppress them. It would cover the giving of "insufficient" or "incomplete" information, perhaps at a meeting or where a service man or woman knows that the Minister needs only a summary of the main facts, rather than complete information. It would hamstring the Armed Forces in their ability to make judgments about what information to provide to Ministers. There is clear MoD guidance on the provision of information to Ministers, which stresses the requirement for meticulous accuracy and highlights the fact that the consequences of misleading Parliament are severe and that those who do so may be held to account. But Amendment No. 38 is too wide and should be rejected.
	Amendment No. 39 is unnecessary. It specifies that in Clause 18 the definition of a document should include any "electronic or computer document". This is already covered by the definition in subsection (5); a document includes,
	"anything in which information is recorded".
	Amendment No. 40 concerns inaccurate records. It would replace and extend Clause 36. Its scope would be greater than the current Clause 36 because it would relate not only to ships and aircraft but to any service material, and service material, as I will explain, would cover anything needed for defence purposes. As I said on Amendment No. 59, Clause 36 is restricted to the formal certification procedures for aircraft, aircraft material and any matter relating to the seagoing or fighting efficiency of Her Majesty's ships. It is not appropriate to extend such formal procedures to a huge range of other service materials. Other offences apply to any inadequacy and record keeping—for example, disobedience to orders or neglect of duty. The amendment is therefore unnecessary. The amendment would also extend the offence to civilians, and I have already explained why I do not think that that would be right.
	Amendment No. 41 concerns dangerous conduct. The proposed new clause in Amendment No. 41 would create a new offence of using service ships, aircraft and materials in a way that is likely to injure someone. It would apply both to service personnel and to civilians subject to service discipline. We believe that this is unnecessary in disciplinary terms, because dangerous conduct is already covered in the Bill by disciplinary offences such as neglect of duty, hazarding a ship and so on. The worst cases might also come within criminal offences such as manslaughter, but the proposed offence is far too wide. It does not require negligence and it does not require risk of serious harm, yet it seems to cover accidentally dropping some equipment on someone's foot.
	The amendment is also new in that it would apply to civilians subject to service discipline. It would effectively make criminal the careless handling of service material by a contractor or, for that matter, by a member of a service family in such a way that someone is likely to be injured. It is often tempting and sometimes seems attractive to add or create new offences, but this would be the wrong way to deal with dangerous conduct by contractors—even more so by other civilians subject to service discipline.
	The new clause refers also to "service material", a definition of which is provided in AmendmentNo. 201A. That definition of "service materials" would cover anything required for defence anywhere in "the Commonwealth". I have already explained why I think that the proposed amendments using that term are too wide and would further complicate the already excessive requirements of the proposed offence. I wrote to the noble Lord after our debate on 24 July and the matters were dealt with in a memorandum to the Select Committee on the Bill.
	I ask noble Lords not to press their amendments.

Lord Garden: The Minister reads from his brief without responding to our debate. Regarding my amendment, which aims to widen the remit of incorrect certification of equipment, perhaps I may give him an example. He stated that it would be unduly bureaucratic for land systems to be included in addition to naval and air systems. However, in modern warfare, we increasingly need to ensure that there are proper devices for the identification of friend and foe. Such devices are and have been fitted to aircraft but, as we discovered in Gulf War 1, they are key pieces of equipment for the land forces, too, if they are not to suffer friendly fire incidents. I assume that the servicing and certification of such equipment, whether it is for the air or ground element, is equally important and that people should be held equally responsible for discharging their duties. Therefore, there must be a supervisory system of oversight to make that happen. This is not a question of there being a bureaucratic process; it is a question of life-and-death systems that depend on people correctly filling out records. Before I decide whether to press my amendment, I would like to hear a response that is not just about bureaucratic systems.

Lord Drayson: The noble Lord makes a fair point relating to the complexity of the military equipment in some cases and how that can be fundamental to its purpose and to issues such as those which he has described, including combat friend-or-foe identification. The question is how we produce a definition of the type of equipment—not relating to aircraft or ships but operating within the land environment—that would be covered by this clause. A definition that related to all service material or to all combat land equipment would be too broad.
	I have listened to the noble Lord's arguments and I will go away and think about this matter. The important point is that we produce a definition for service equipment used outside the air and maritime environment that enables us to discriminate between those service materials for which this clause would not be appropriate and those materials that we felt were sufficiently important and fundamental either to operations or to the safety of our Armed Forces. I have taken on board the noble Lord's points and will see whether it is possible to do that in the Bill.

Lord Astor of Hever: I apologise to the Minister for interrupting him. I misheard him and thought that he was speaking to Amendment No. 36.
	I am grateful to the noble Lord, Lord Garden, for supporting our amendments. The Minister has given a full answer to them and there is much to digest. He said that he would go away and think about some of these issues. The noble Lord, Lord Garden, said that there could be some redrafting. We will read Hansard carefully and, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 38 and 39 not moved.]
	Clause 18 agreed to.
	[Amendment No. 40 not moved.]
	Clause 19 agreed to.
	[Amendment No. 41 not moved.]
	Clause 20 [Unfitness or misconduct through alcohol or drugs]:

Lord Garden: moved Amendment No. 42:
	Page 9, line 26, after "orders" insert "or advice"

Lord Garden: Clause 20, under which I have tabled Amendments Nos. 42 and 43, deals with unfitness or misconduct through alcohol or drugs. Although my amendment seems a fairly minor typographical one, it is important that subsection (2)(c) and (d) should provide a way out of being found guilty if a drug is taken or administered on the orders of a superior officer.
	The clause does not quite meet the situation in which service men and women find that they need to take protective drugs—for example, in theatres of operations where they may be exposed to biological agents or whatever. Often, they are given advice rather than an order and are left to make a decision one way or the other. In the past, that advice has occasionally been quite strong but it has been short of an order, and one needs to take that into account.
	Under this clause I also want to raise the question of performance-enhancing drugs, into which a great deal of research is being carried out. Again, I am looking to the future of warfare. In the United States, such drugs appear to have had an operational status. I should like the Minister to assure us that the clause does not give a superior officer the authority to order the use of a performance-enhancing drug. I think of a case in April 2002 in which two American pilots killed four Canadians on the ground and injured eight others. The subsequent inquiry into that friendly fire incident revealed that the pilots had been taking amphetamines—legally from the American perspective—supplied by the US Air Force. We certainly did not ever do that when I was in the Air Force. I trust that that is the case today and that we are not in any way legitimising that sort of event. Does the Minister believe that the clause addresses the problem or should we insert an amendment that would ensure that we did not administer to our service people drugs designed for performance enhancement?
	So I have two questions: one concerns the advisory use of drugs; the other relates to whether there is an absence in the clause of a prohibition of the use of drugs for reasons other than protection. I beg to move.

Earl Attlee: It seems to me that the noble Lord, Lord Garden, is talking a lot of sense on both points.

Lord Drayson: I agree with the noble Earl, Lord Attlee—the noble Lord does talk a lot of sense on these points. He is right that a development is taking place in defence research on the whole area of performance-enhancing drugs. I shall go away and reflect on whether we need to be clearer about those drugs, but our central point of concern is that the amendment is broad: it would be a defence to take advice from a superior officer, whatever the reason for that advice, even if the officer was not medically qualified.
	The central point is that the advice needs to come from an officer who is medically qualified. The noble Lord mentioned his own past experience within the military of the way in which these things were done. It is very important that the advice originates from medical advisers and is then passed on through the chain of command. That situation will be covered by subsection (2)(a), which provides a defence where a drug is taken or administered on medical advice. Under those circumstances, the serviceman would not be guilty of an offence.
	Therefore, there are two important points. First, it is important that the advice originates from someone who is medically qualified and, secondly, it is important that the advice comes down through the chain of command in a way that validates that the advice, once given by the personnel's chain of command or commanding officer, has come from someone who is medically qualified.
	I will take on board the point he makes about performance-enhancing drugs because there are developments on this issue. Having said that, I hope that the noble Lord will feel able to withdraw his amendment.

Viscount Slim: Before the noble Lord sits down, may I say that the word "enhancement" mentioned by the noble Lord, Lord Garden, worries me slightly? There are times when great fatigue sets in. Let us say, for instance, that a soldier has 30 miles to go to a friendly border, or such like, and that there is a pill or two that will help him to get there if he is greatly fatigued or stressed. It is a helpful thing; it is not a poisonous drug, or anything like that. I am a little worried about the word "enhancement". On operations I have carried a pill in my pocket in times of dire trouble, which is taken mostly for fatigue. You take and it keeps you going for 24 hours. You had better get there or you crash out.

Lord Williams of Elvel: The noble Viscount, Lord Slim, makes a good point. Is there a definition of performance-enhancing drugs that could be put into the Bill?

Lord Drayson: I am grateful to my noble friend and for the points made by the noble Viscount, Lord Slim. A considerable amount of research is taking place in this area of defence. Modern developments in the pharmaceutical and biotech industry have led to the possibility of a great broadening of the potential use and misuse of pharmaceuticals to both enhance performance and to change mood. I will consider whether the clause as drafted is sufficiently clear to take that important point into account.

Lord Lyell of Markyate: I rise briefly to support what the noble Lord, Lord Garden, said, and to ask the Minister to clarify the question of advice. It seems to me possible that strong advice could be given by a superior officer that did not emanate from a doctor, but which none the less would greatly influencethe conduct of a subordinate. I do not think that the advice should be quite so narrowly construed as the Minister seems to have in mind. If you get advice from a superior officer, that should be sufficient.

Lord Drayson: I absolutely understand the noble and learned Lord's concerns. This is an important point because we need to ensure that we have sufficiently defined the issue so that it is clear that if a soldier receives advice from his chain of command, it has gone through a validated procedure and originated from someone who is medically qualified. It would be wrong for people who are not medically qualified, and who have not been authorised to do so by the chain of command, to give advice to our personnel on the use of pharmaceutical agents in that way. Making it absolutely clear in the Bill is a positive step.

Lord Craig of Radley: I am not absolutely happy about this. The medical advice is about the safety or otherwise of the drug. The use of the drug in order to enhance performance, or whatever it happens to be, may be an operational view. I am not too happy that the advice which emanates from the medical side is necessarily sufficient defence if the subordinate has been ordered by his superior to take a particular drug in order to enhance his performance. That enhancement of performance may be operationally essential. I understand that the Minister will take this away and think about it, which I accept, but I wonder whether he will bear in mind that distinction as well.

Lord Drayson: Yes, I absolutely agree.

Lord May of Oxford: I do not know a great deal about this subject, but there are at least three categories: medical, operational and ethical. Some of these performance-enhancing drugs will have the character, as the noble Viscount so clearly pointed out, of being a lesser evil. Better to take it than just fall over where you are. As I understand it, however, some of the things under consideration are designed to give an extra edge of one kind or another to frail humans. All three dimensions are involved in those: operational considerations are best left in the hands of the military; medical considerations are best left in the hands of informed people; and, ultimately, there are ethical questions about which drugs are used and which are not. I therefore welcome the Minister's recognition that it would be good to sharpen the definitions in this part of the Bill.

Lord Garden: I am most grateful. It has been a useful short debate on an important and developing subject.
	I am not sure that I totally follow the Minister's lead on the question of "orders or advice" from a senior officer. I understand that in practice advice should come from the medical side. However, we are talking about an offence of unfitness or misconduct through alcohol or drugs. If a serviceman is strongly advised by a superior officer to take a drug which causes him to be unfit or to be guilty of misconduct, that should be a defence. It is irrelevant that the practice ought to be through a medical adviser. I hope the Minister will take that away and look at it again, so that we have that sorted by Report stage.
	The debate on performance-enhancing drugs is the more important point. I totally take the thoughts of the noble Viscount, Lord Slim, that you can have a performance-enhancing drug that may keep you going on the ground, but which may cause you not to be able to fly as accurately as you otherwise might when in the air. It is a difficult judgment, and there is also the ethical question that has just been raised.
	This is an opportunity to lay down some ground rules about the use of such drugs: who is responsible and what happens if the operational decision is made to give a performance-enhancing drug which leads to a problem, such as the American pilots had with their friendly fire incident. Does that become a defence against unfitness or misconduct through alcohol or drugs—or, indeed, other offences such as careless or dangerous flying, or whatever?
	I am most grateful that the Minister has offered to look at this paragraph. I am sure we will all be content to work together to try to get something on Report. Until then, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 43 not moved.]
	Clause 20 agreed to.
	Clause 21 [Fighting or threatening behaviour etc]:

Lord Astor of Hever: moved Amendment No. 44:
	Page 10, line 1, after "abusive," insert "harassing,"

Lord Astor of Hever: I shall speak also to Amendments Nos. 45 to 48.
	The purpose of these amendments is to make harassment of one member of the Armed Forces by another a specific and recognised offence. It follows from both the Deepcut report and the agreement recently made and published, with extensive supporting evidence, between the Armed Forces and the Equal Opportunities Commission.
	Harassment is easier to recognise than define, and is often more evident from the point of view of the victim than that of the perpetrator. AmendmentNo. 46 therefore includes a perception dimension:
	"may be thought to be".
	It also provides for the minor sentence of a service corrective order to address repetition. The whole thrust of the outcome of the EOC report is the need to stop the offence and to prevent repetition.
	Amendment No. 45, to substitute "or" for "and", makes it clear that this offence can be committed without it being likely to cause a disturbance. I beg to move.

Lord Garden: I support the amendments in this group tabled by the noble Lord, Lord Astor of Hever. After the Deepcut review, this is an important amendment, and it has our full support.

Lord Drayson: The offence as drafted, like the offence which it replaces in the existing service discipline Acts, is designed to prevent specified types of misbehaviour when they are likely to result in a disturbance. It recognises that there is a low level at which such misbehaviour between service personnel should not automatically be an offence. The clause therefore limits the offence to where it is serious enough that a disturbance is likely. I understand the arguments that the noble Lord made as a result of what we learnt from the reports on Deepcut and so forth, but Amendments Nos. 44 to 48 would make any insult, for example, an offence, even if there was no risk of a disturbance.
	They would also make any harassment an offence. Harassment is already covered by the comparatively new criminal offence of harassment under Section 2 of the Protection from Harassment Act 1997. The inclusion of harassment in this clause is therefore unnecessary. Moreover, it would create an offence which, because it could be committed by a single incident, would be inconsistent with the 1997 Act, under which harassment depends on a course of conduct.
	Finally, these amendments provide that thecourt martial can impose a restraining order under Clause 228. We believe this is unnecessary as a restraining order is not a punishment and so is not precluded by the restrictions in the clause on punishments. Clause 228 would already allow the court to make such an order. Clause 22 highlights the importance of trust and respect in the relationship between commanders and those under command. The offence is about the seriousness of mistreatment by superiors of their subordinates.
	Amendment No. 49 would extend the offence to ill-treatment by a person who is not the victim's superior officer, but is pretending to be. This is clearly outside what this offence is really about, which is the abuse of authority. There are other service disciplinary or criminal offences that would be more appropriately used where the offender only pretends to be a superior.

Earl Attlee: I shall exercise some judgment and shall not move Amendment No. 49.

Lord Astor of Hever: I thank the noble Lord, Lord Garden, for his support. I am grateful that the Minister understands our arguments. From what he said, it appears that our amendments are superfluous. He said that harassment is already covered by another Act. We will need to look into this carefully, and we may come back to it on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 45 to 48 not moved.]
	Clause 21 agreed to.
	Clause 22 [Ill-treatment of subordinates]:
	[Amendment No. 49 not moved.]
	Clause 22 agreed to.
	Clause 23 agreed to.
	Clause 24 [Damage to or loss of public or service property]:

Lord Drayson: moved Amendments Nos. 50 and 51:
	Page 10, line 35, leave out subsections (1) to (3) and insert-
	"(1) A person subject to service law commits an offence if-
	(a) he does an act that causes damage to or the loss of any public or service property or any property belonging to another person subject to service law; and (b) either- (i) he intends to cause damage to or the loss of the property, and there is no lawful excuse for his act; or (ii) he is reckless as to whether he causes damage to or the loss of the property.
	(2) A person subject to service law commits an offence if-
	(a) negligently, he does an act that causes damage to or the loss of any public or service property; or (b) he does an act that is likely to cause damage to or the loss of any public or service property and- (i) he is reckless as to whether he causes damage to or the loss of the property; or (ii) he is negligent."
	Page 11, line 20, leave out paragraphs (a) and (b) and insert-
	"(a) in the case of an offence under subsection (1), ten years; (b) in the case of an offence under subsection (2), two years."
	On Question, amendments agreed to.
	Clause 24, as amended, agreed to.
	Clause 25 [Misapplying or wasting public or service property]:

Lord Garden: moved Amendment No. 52:
	Page 11, line 26, after "he" insert "knowingly"

Lord Garden: I rise to speak to Amendments Nos. 52 and 53, which are amendments to Clause 25. I assume that the Minister is very much in favour of this clause as we have seen, by virtue of the National Audit Office, that his own department is sometimes negligent in this respect.
	My amendment attempts to try to ensure that this clause is not applied too rigorously. Given NAO reports over the years, that would mean that the military justice system would grind to a halt since waste appears to be endemic. It involves a more serious point about who we are we trying to catch with this approach. Let me take a concrete example. We keep discussing the eight Chinook HC3s, which must presumably fall within the category of having been authorised to be modified in such a way as to cause a waste of service property—to the tune of £150 million, or whatever it is.
	Who does this clause catch? There is a chain of people, some of whom knowingly do it—presumably because they have the expertise—and some perhaps unknowingly. Or is it really aimed at very junior personal doing minor wastage on units? If so, that would be unfortunate. My amendments are probing in nature to show exactly where the buck will stop because it could be an important clause if correctly targeted. I beg to move.

Lord Astor of Hever: Although I accept that these amendments are probing, we support their thrust. We feel that service personnel should be guilty of a Clause 25 offence only if they knowingly waste or misapply service property. If they are ordered to do so, they should not be charged under this clause. If a serviceman or servicewoman is found guilty of this offence, it will stay on their record and may seriously affect their career.

Earl Attlee: Perhaps I may illustrate a situation from my experience which shows why this amendment is necessary. A senior NCO condemned a winch on a heavy recovery vehicle. He misdiagnosed the failure of the winch, but he did not realise he had misdiagnosed it. The winch was worth £15,000 and we did not have one in stock. So, if one wanted to investigate what went wrong, one might decide to prosecute the serviceman for making a technical error. The noble Lord's amendment would stop that unnecessary and inappropriate prosecution taking place. Therefore, I support the amendment.

Viscount Slim: I am not too clear on this point. What happens if on operations—say there is an ambush or something—a vehicle convoy is going along and everyone has to take to their feet to get into the hills, but before doing so they destroy the vehicles so that the enemy cannot have them? Does that involve "knowingly" wasting? I am not sure how this firms up operationally. A lot of people destroy things on operations so that the enemy cannot have them.

Lord Drayson: I agree with noble Lords focusing on this very important area. The noble Lord, Lord Garden, raised the point on the Mark 3 Chinook helicopters. He knows very well the importance of making sure that we do not misapply or waste public money. This is a difficult area because we have to ensure that we are defining the offence in this clause, such that it takes into account a reckless or negligent misuse or waste where such negligence or misuse could have serious consequences for the unit. Therefore, we believe that it is important for us to maintain that wider definition, not to have it limited by the wording, "so knowingly to do". The important point concerns recklessness or negligence. It is important for me to point out that an offence under the clause is not so serious as ever to justify imprisonment. That penalty is not available under the clause.
	Amendment No. 53, providing that a serviceman who misapplies or wastes public or service money commits no offence if his actions were on the orders of a superior officer, is unnecessary, because if a serviceman acted on the basis of an order, he would not have the necessary intent, negligence or recklessness to commit an offence. On the question of the noble Lord, Lord Garden, of who this is intended to catch, we intend to be able to take action where someone has acted in a reckless or negligent way and, as a result, has led to the misuse or waste of public money.

Lord Mayhew of Twysden: Has the Minister considered the use of the words, "or without lawful excuse"? That might meet the point raised by the noble Viscount, Lord Slim.

Lord Craig of Radley: The Minister seems attached to the use of the word "reckless" in the clause, rather than the word proposed by the noble Lord, Lord Garden—"knowingly". In fact, I would prefer "reckless" to "knowingly", but the Minister may take this away and consider inserting that word.

Lord Lyell of Markyate: I support the noble and gallant Lord and the noble Lord, Lord Garden, in asking the Minister to take this away. If I may respectfully say so, the fact that the Minister refers to intent, negligence and recklessness as either being or not being essential parts of the clause—albeit that they are not written into it—indicates that a good deal of careful thought needs to be given to its drafting before we go much further. Obviously, we cannot do all that in Committee, but I urge the Minister to say that he will take it away and think about it very carefully.

Lord Borrie: It seems to me that several noble Lords have made vital points. Whether or not one agrees with the sentiments of the noble Lord, Lord Garden, clarification is needed. In the Minister's first answer, which I presume was according to his brief, the words "recklessly or negligently" appeared several times. Surely it would be better if the clause itself contained those words. The noble Viscount, Lord Slim, made a point that was excellently responded to by the noble and learned Lord, Lord Mayhew, whereby some additional phrase—we are not drafting in Committee but the Minister can consider this—such as "without lawful excuse" could be added. It seems abundantly clear that under the facts outlined by the noble Viscount, if something is destroyed to withhold it from the enemy who is advancing upon it, that is not misapplication, nor is it a waste; it is a perfectly proper act.

Lord Drayson: This has been a very helpful debate which has raised a number of issues. I will go away and consider the matters, as has been suggested.

Lord Garden: I am most grateful to the Minister for undertaking to look at the matter again. The debate has been useful because it has elucidated what he is trying to achieve through Clause 25. From all the contributions by noble Lords, it does not seem that the current wording will achieve that. I have no particular attachment to my first suggestion and those that we have heard from numerous noble Lords could be incorporated to make the provision much clearer than it is. I look forward to seeing it in a different form when it returns on Report. Until then, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 53 not moved.]
	Clause 25 agreed to.
	Clauses 26 to 30 agreed to.
	Clause 31 [Hazarding of ship]:

Lord Drayson: moved Amendments Nos. 54 and 55:
	Page 13, line 38, leave out subsections (1) and (2) and insert-
	"(1) A person subject to service law commits an offence if he does an act that causes the hazarding of any of Her Majesty's ships and-
	(a) he intends to cause damage to or the stranding or loss of the ship, and there is no lawful excuse for his act; or (b) he is reckless as to whether he causes damage to or the stranding or loss of the ship."
	Page 14, line 16, leave out "or (2)"
	On Question, amendments agreed to.
	Clause 31, as amended, agreed to.
	Clause 32 agreed to.
	Clause 33 [Dangerous flying etc]:

Lord Drayson: moved Amendments Nos. 56 to 57:
	Page 14, line 36, leave out paragraph (b) and insert-
	"(b) either- (i) he intends to cause loss of life or injury to any person, and there is no lawful excuse for his act; or (ii) he is reckless as to whether he causes loss of life or injury to any person.
	(1A) A person subject to service law commits an offence if, negligently, he does an act-
	(a) when flying or using an aircraft, or (b) in relation to an aircraft or aircraft material, that causes or is likely to cause loss of life or injury to any person."
	Page 15, line 10, leave out paragraphs (a) and (b) and insert-
	"(a) in the case of an offence under subsection (1), may be for life; (b) in the case of an offence under subsection (1A), must not exceed two years."
	On Question, amendments agreed to.
	Clause 33, as amended, agreed to.
	Clause 34 [Low flying]:

Lord Garden: moved Amendment No. 58:
	Page 15, line 25, at end insert "and authorised for the specific flight"

Lord Garden: My amendment deals with Clause 34 on low flying, and in particular with the definition of "minimum height", below which an offence is committed. In subsection (3), the minimum height is the height prescribed by regulations made by the Defence Council. In practice, when authorising each flight, the minimum height for the operation will be written in by the officer authorising the flight. That minimum height may well be higher than the minimum height prescribed by regulations, taking into account the conditions, the need for the operational or training requirement, the weather, and a whole range of other factors. If we are trying to have an offence that wraps up low flying, it might be worth considering ensuring—I shall be interested to hear the Minister's thinking about this—that it embraces whatever the authorised height is, which may often be higher than the minimum height. I beg to move.

Lord Lyell: I am grateful to the noble Lord, Lord Garden, for making a point about the authorised height, because it occurs to me that from time to time on separate operations, individual flights, individual days and individual periods of flying that the regulations or the limit—if I may call it that—on height may well be altered not every day but with the full authority of those who are on the ground and know what they are doing. One might need a degree of flexibility in this, and I hope that the noble Lord's amendment, let alone what the Minister proposes in the clause, might allow this degree of flexibility.
	My mind goes back to the tragic events at the Mull of Kintyre, which will be familiar to my noble and learned friend Lord Mayhew, and to the report on those events that referred to various aspects of a particular helicopter flying at a particular height. There might well have been, and probably were, specific height restrictions for that particular operation on that particular day, but I hope that the amendment proposed by the noble Lords, Lord Garden and Lord Thomas of Gresford, and any reply given by the Minister, allows such flexibility for a particular height restriction. I am advised that there is a general height restriction of 500 feet for aircraft flying low over my home in Scotland. It might be 250 feet at certain times. I hope that there is flexibility in the noble Lord's amendment, let alone in the Bill.

Lord Astor of Hever: This is a sensible amendment, which we support. As the noble Lord and my noble friend said, operations differ and our crews should not be penalised where there is an authorised need for low flying.

Lord Craig of Radley: I, too, support the amendment. I just want to make it clear that the clause, as I read it, refers to peacetime flying and training flying. I am not absolutely clear whether there is any likelihood of such an offence being brought against someone who is flying not only in wartime situations but in quasi-wartime situations, whether over this country or anywhere else. Perhaps the Minister will assure me that it would not.

Lord Drayson: I recognise the concern raised by the noble Lord, Lord Garden. He is right. In addition to the low-flying restrictions in place under Defence Council regulations, further restrictions are sometimes imposed. Nevertheless, although we are mindful of the situation, we believe that this amendment is unnecessary. Specific flight restrictions through local arrangements will be imposed by specific commands or standing orders. In either case, disobedience to that command or standing order will be an offence. Therefore, there is no requirement to bring conduct of that type within this clause. On the basis of that clarification, I hope that the noble Lord will feel able to withdraw his amendment.
	I am able to provide the confirmation that the noble and gallant Lord seeks. This does not relate to a combat situation as he describes.

Lord Garden: I am of course aware that a number of orders and regulations will be locally provided. My point is beyond that. A specific height will be written into the authorisation sheet for every flight operating below normal operating heights, and it cannot go below that height. It is slightly curious that we have a clause on low flying. This will be done because the authorising officer perhaps thinks that the pilot is not yet experienced enough to go down to the minimum height or that on a particular day the weather or other conditions are not appropriate to allow him to do so. If a person disobeys the order written in the authorisation sheet, there will be the possibility of charging him or of other disciplinary action. It just seems curious that it would not be done under this provision, because we have not made it an offence to fly below the authorised height for the flight, rather than under, as the Bill currently states, the minima defined by the Defence Council, which will be different. The Minister may find it worth while to have another look to see whether there is substance in my proposal.

Lord Drayson: I am grateful to the noble Lord for that clarification. He makes a very good point. I will go away and study exactly what he has said in the context of what really takes place and make sure that this clause as drafted properly reflects that.

Lord Garden: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 34 agreed to.
	Clause 35 agreed to.
	Clause 36 [Inaccurate certification]:
	[Amendment No. 59 not moved.]
	Clause 36 agreed to.
	Clauses 37 to 41 agreed to.
	Clause 42 [Criminal Conduct]:

Lord Thomas of Gresford: moved AmendmentNo. 59A:
	Page 18, line 26, at end insert-
	"(1A) A person shall not be charged with an offence against this section committed in the United Kingdom if the corresponding offence under the law of England and Wales is treason, murder, manslaughter or rape.
	(1B) Where the corresponding civil offence is murder or manslaughter, an offence under this section shall be deemed, for the purposes of subsection (1A), to have been committed at the place of the commission of the act or occurrence of the neglect which caused the death, irrespective of the place of the death."

Lord Thomas of Gresford: This amendment would retain the present position under the Army Act 1955 whereby a person may not be charged with an offence of treason, murder, manslaughter or rape if that offence was committed in the United Kingdom. I have followed almost exactly the wording of the existing provision and the historic provision in the Army Act.
	Perhaps I may say a few words broadly. The justification for courts martial for serious offences committed abroad is entirely accepted. It is in the interests of a serviceman or a civilian who is subject to service jurisdiction that, if he is charged with serious offences abroad, he should have available to him a tribunal where the law of England and Wales is applied, the proceedings are conducted in the English language and the procedures are appropriate. I have no quarrel with the present situation, and the continuing situation under the Bill, that there should be court martial hearings abroad for serious offences. However, no proper justification appears to have been put forward for extending the jurisdiction of courts martial to the serious offences of treason, murder, manslaughter or rape when a serviceman commits those offences in the United Kingdom itself and is therefore subject to ordinary criminal procedures. He will be tried before a jury in the Crown Court, and that is something that frequently happens.
	In the letter which he has helpfully sent to us on this topic, the Minister said that we have to recognise that the court martial system is compliant with the European Convention on Human Rights. Although that may be so—and I do not necessarily say that it is—it has been a long struggle to reach that position. It is a long struggle which has been carried out not by the Government but by defence advocates who on numerous occasions have taken the Government to the European Court of Human Rights to obtain judgments in their favour. Here I recognise the sterling work of Mr John Mackenzie, Mr Gilbert Blades and others who have brought these cases forward. For example, in 1997, in the case of Findlay, the European court held that the system of courts martial was not compliant because the convening officer prosecuted the case, appointed the panel which tried it, and then reviewed the conviction and sentence imposed by the panel. He could have, if he had so desired, reversed it. As a result of that judgment in 1997—when of course the Government were arguing to maintain the system as it then was—the Armed Forces Act 2001 was passed.
	However, that was not the end of the story. In 2002, in Morris v the United Kingdom, the European court again held that the court martial system was not compliant on a number of grounds: first, that the junior officers who formed part of the panel were subject to reports on how they had carried out their duties; and, secondly, the court was unhappy with the reviewing authority. The court thought it inappropriate that an extrajudicial body should decide on the conviction and sentence subsequent to the original hearing. The Judicial Committee of this House actually disagreed with that decision in the case of Boyd, but the Armed Forces Act 2001 and the Naval Discipline Act 1957 (Remedial) Order 2004 altered the system. All sorts of things have been pressed not by the prosecution but by the defence, and as a consequence, by pushing and shoving, the court martial system has come closer to the sort of system that we are familiar with in the civil jurisdiction in this country. However, it certainly has not arrived there yet. This Bill is another step on the way, but there are further steps to be taken. If the Government were to accept our later amendments to the Bill, we might reach a satisfactory situation, but the Government's present approach appears to be, as it always has been, to reject with scorn any attempt to try to amend the system.
	For example, it is still the case that instead of a unanimous verdict by a jury of 12 people, or at the very least a majority verdict of not less than 10 to two, a court martial is decided by a simple majority. If five sit, three to two is enough for conviction; if seven sit, four to three is enough. Then, sentencing is by the panel itself. Officers are brought together for a court martial—and will continue to be so under the Bill—and upon them, without any training or background at all, is put the responsibility of sentencing. Of course they can take the advice of the judge advocate who sits with them but, except in the case of a tie when I think he has a casting vote, he has only one vote. That is unsatisfactory. It is also unsatisfactory that panels do not include a cross-section of service personnel. As a result of pressure from defence advocates, warrant officers were introduced to panels, which now frequently include a warrant officer; civilians were introduced to sit where civilian defendants were before a court martial, and so on.
	I recall that one of the last procedures to go went as a result of a Question that I asked in this House about whether it was right that a defendant in a naval court martial should be marched in at the point of a cutlass. Between my tabling of the Question and the Minister of the day, the noble Lord, Lord Bach, replying to it, that hallowed custom—which of course the Navy loved—had suddenly disappeared. In the time I have been involved in courts martial the swords have gone and the stripping the defendant of his belt and cap, the marching and the saluting have all disappeared. Indeed, today—again as a result of pushing by the defence—the panel sits separately from the judge advocate.
	His honour Judge Blackett, who is the Judge Advocate General, gave evidence to the Select Committee on this Bill in another place. His memorandum stated:
	"The military system should be the equivalent of the civilian system in all respects except where the requirements of operational effectiveness make the differences impossible".
	We have an enlightened Judge Advocate General who has said that he believes the court martial system should reflect the Crown Court in all respects except where there are good operational reasons for differences. He is trying to ensure that a court martial is regarded as on an equivalent footing to a Crown Court. But we are not there. Unless the amendments that we have put down—which I believe were suggested by the Judge Advocate General in his evidence to the Select Committee on the composition of the panel, on the question of sentencing by a board which has no experience and on the question of majority verdicts—are agreed, we will not have a system for trying servicemen in this country which is the equivalent of a Crown Court.
	Why, therefore, should we have this change to allow courts martial to deal with treason, murder, manslaughter and rape committed in this country? Who is to decide? Nowhere in the Bill is it set out who decides whether a serviceman should be tried by court martial for murder or for rape as opposed to sending him to the Crown Court to be tried in the ordinary way by a jury. We have a system proposed which is, in my view, unacceptable.
	I notice that Major-General Howell, the head of the prosecuting authority, in his evidence to the Select Committee, justified the change for the following reason:
	"I can see a situation where if you had a soldier committing murders in a lot of different countries, one of which is the UK, it may be easiest for a Court Martial to try the case because the Court Martial can move around countries and listen to witnesses locally and has that other advantage. I do think it is something that is going to be very rare, to be frank, but I can imagine the situation might exist".
	It has never happened. There has never been a serial murderer who has been murdering all round the world who has been tried by court martial. Yet that is the only justification that the head of the prosecuting service, Major-General Howell, could put forward for grasping this additional jurisdiction to the courts martial in this country.
	Supposing someone were to say to a policeman, "You are part of a discipline service and there are certain things about policemen which are peculiar. Therefore, it is only right that if you are charged with murder or with committing a serious offence, you should be tried not by a jury but by a panel of senior policemen". Can you imagine the reaction of the people of this country if such a situation arose? Let us take, for example, the de Menezes case, where that unfortunate man was shot on a Tube train, and suppose that a police officer involved in that situation were to be dealt with by a panel of policemen. What is the difference?
	There are practical reasons for courts martial dealing with serious matters abroad; I have outlined those and accepted them. But there are no practical reasons, apart from the far-fetched situation imagined by Major-General Howell, for that jurisdiction to be exercised in this country.
	I am sorry to have wearied your Lordships for so long on this topic, but it is of considerable importance. A principle of trial by jury—a principle that has always been accepted in relation to servicemen—is being broken for no adequate reason. We cannot allow this to go through without hearing justification and examining it. Let us have some transparency. We may then accept it but I suspect that your Lordships will ultimately reject this claim for additional jurisdiction. I beg to move.

Earl Attlee: I disagreed with quite a lot of the background to what the noble Lord, Lord Thomas of Gresford, said, but it seems most peculiar to extend the jurisdiction in the way that the Bill proposes. I shall be very interested to hear the Minister's explanation about why it is desirable to make these changes.

Lord Drayson: This issue goes to the heart of the Bill. There are two key principles underpinning the Bill with which I hope no one in this place disagrees. The first is that our Armed Forces require a separate system of military justice. The second is that the system of justice must underpin service discipline at all times, wherever, geographically, an offence may have taken place and whether it has been in an operational or non-operational environment.
	The noble Lord has described his concerns at length and I have responded in a letter to him, setting out our arguments in some detail. I will not go through those arguments in detail this afternoon in the interests of brevity. However, I stress that the fundamental principle that we are aiming to achieve in the Bill is to ensure that we have a separate system of military justice which can be recognised by our Armed Forces as fair, effective and appropriate. We believe that this aspect is important. Perhaps I can give some background to why the current service discipline Acts restrict the powers of courts martial to try certain criminal offences.
	My understanding is that the reasons for these exclusions are historical and go back to the 17th and 18th centuries. Those reasons in the modern context have gone. It would be seen as strange for a member of the Armed Forces to be able to elect not to be tried by his peers within a court martial and to go through a civilian system. Nowadays, protocols exist between the civilian and service police and the prosecuting authorities. Our aim is to have the same flexible approach apply to murder or manslaughter as already applies to offences such as grievous bodily harm and the most serious sexual offences. The amendment, like the existing restriction, would cause practical difficulties.
	I shall give one example of where the restriction would lead to unfairness. If a soldier were suspected of raping another soldier twice, once in the United Kingdom and once in Germany, the services could deal with the offence in Germany, but not in the United Kingdom—they would have to be tried separately. Other examples could be given, and I would be happy to provide further details to your Lordships, but this is a fundamental principle of the Bill. It ensures that the Bill provides a separate system of military justice for our Armed Forces.
	The noble Lord, Lord Thomas, raised numerous ECHR judgments. Apart from the case of Findlay, which he mentioned, the essentials of the court martial process have been consistently upheld. The decision in Morris was overturned in Cooper by Strasbourg, and no legislative change followed Morris. The only change since Findlay has been the decision in Greaves against naval uniformed judge advocates.
	We have carried out a careful examination of ECHR compliance and I have described it in some detail in the letters that I have sent to noble Lords.

Lord Thomas of Gresford: Does the Minister accept that reporting on the conduct of junior officers at courts martial is now absolutely forbidden? Does he further accept that the Bill abolishes the reviewing authority? Those were two points in Morris where the European court said that the court-martial system was not compliant.

Lord Drayson: I shall take further advice on those points and will write to the noble Lord with an answer.

Lord Thomas of Gresford: Your Lordships now know that, from the 16th and 17th century, exceptions for the serious offences of treason, murder, manslaughter and rape have been made, and that courts martial for those offences committed in this country have never taken place. Have your Lordships heard this afternoon any justification for changing the system? I would respectfully suggest, with the greatest deference to the Minister, that absolutely no justification has been put forward. Why do we overturn 300 or 400 years of history without any point to it? This is a matter on which I do not seek your Lordships' opinion today, but I shall certainly come back to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford: moved AmendmentNo. 60:
	Page 18, line 28, at end insert-
	"( ) No civilian subject to service discipline under the age of 18 years may be prosecuted before the Court Martial for an offence under this section."

Lord Thomas of Gresford: The amendment deals with juveniles subject to appearances before courts martial. As the Committee knows, we are extremely careful and cautious in dealing with juvenile offenders, in how the case is handled in court, how it is prosecuted and decided, and what forms of punishment or treatment are involved as a result of appearance in a juvenile court. However, this Bill permits juveniles who are civilians to be brought before a court martial, when they have not themselves joined the services but happen to be under the jurisdiction of that court because, for example, their parents are service people, or for some other reason—they are serving abroad with the British forces. I respectfully say that that is contrary to our whole approach to juvenile justice.
	I add, for your Lordships' further consideration, that unlike the juvenile courts of this country, the panel that hears these cases by way of court martial has nil experience of the various ways of dealing with juveniles. Although they can be advised by the judge advocate sitting with them, they do not have to take his advice. As I have already pointed out in the previous amendment, they can decide sentencing by way of a majority.
	I had the unfortunate experience of representing a young man of 17 who was charged with murder. He was dealt with by court martial in Germany, notwithstanding that he awaited his trial in prison in this country and was taken back to Germany, where his father had left the services, to be tried under a court martial. The matter went to the Appellate Committee of this House, which upheld the conviction, but it has lived with me—we should not be dealing with youngsters in that way.
	That is the motivation behind Amendment No. 60. Grouped with it is the objection to the whole concept of the court martial dealing with civilian offences. This broad subject has been addressed on many occasions, not least before the Appellate Committee. We have given and continue to give courts martial the right to deal with civilian offences; that is to say, they are dealing not with disciplinary matters but with people who have committed ordinary crimes on the statute book. I know that I will not persuade your Lordships that this system, which has operated for a long time, should be changed, but what I am saying is perhaps one step further along the road to confining military courts martial to what they should be confined to: disciplining the service men under their control. They should not deal with civilians, particularly not with youthful civilians and civil offences.
	I put my focus on Amendment No. 60, because the Bill does not give proper consideration to how juveniles subject to service discipline should be dealt with. The Bill sets up service civilian courts, and the rules proposed and promoted for those courts should encompass the sort of things that we have in a juvenile court in this country. There must be enough people of sufficient experience to sit on the equivalent of a juvenile panel. I would like to see under-18s dealt with by that service civil court sitting as the equivalent of a juvenile panel in this country. That panel should have experience of the way in which we deal with juveniles. I beg to move.

Lord Borrie: Since the 18th century our law has given courts martial jurisdiction over civilian dependants and employees but, until the Army Act 1955, this applied only if our troops were on active service. Military law was extended in 1955 to cover civilians in peace time accompanying soldiers in other countries, to bring it into line with what was supposed to be the position in the United States. But in 1960 the United States Supreme Court ruled that it was unconstitutional for United States civilian employees and dependants to be subject to courts martial in peace time. One of the reasons given by the Supreme Court in 1960 was that court martial procedure does not allow for trial by jury.
	I have immediate sympathy for AmendmentNo. 60, proposed by the noble Lord, Lord Thomas, which concerns under-18s being exempt from the jurisdiction of a court martial. He has referred to the case in which he appeared as defence counsel. I am not sure that he gave the name of that case, R v Martin in 1997, in which a 17 year-old, the son of a British corporal serving in Germany, was tried by court martial for murder in Germany. As the noble Lord said, that case came before the Appellate Committee of this House. It is worth pointing out that the noble and learned Lord, Lord Slynn of Hadley, who is not present, expressed concern at depriving the young man of trial by jury, although he accepted that there would have been "great difficulty" in having the evidence of some—at any rate, the German witnesses—brought before a civilian court in England.
	It so happens that in 1966, in another case, the wife of a British soldier stationed in Germany was tried by court martial for the murder of her husband and sentenced to life imprisonment—later it was reduced twice to five years' imprisonment. The defendant was just over 18 years old. The concerns expressed by the noble and learned Lord, Lord Slynn, in R v Martin were as relevant in the case of Mrs Clark as they were in that of the under 18-year-old, particularly the absence of a trial by jury and allowing a simple majority verdict, which is all that is necessary to establish guilt in a court martial.
	When the United States condemned on constitutional grounds the court martial trial of civilians in peace time, Justice Black in Washington said that when a Government reach out to punish a citizen abroad,
	"the shield which the Bill of Rights and other parts of the constitution provide to protect his life and liberty should not be stripped away because he happens to be in another land. This is not a novel concept. To the contrary it is as old as government. It was recognised long before Paul invoked the right as a Roman citizen to be tried in strict accordance with Roman law".
	It is evident that I support the amendment proposed by the noble Lord, Lord Thomas, but I would really like it to go further. Like the noble Lord, I question the clauses that immediately follow in this debate. I question the jurisdiction of courts martial over all civilians, whether under or over 18, except when accompanying troops in wartime on active service. Of course I accept that when troops and accompanying civilians are based in peacetime in another country they are prima facie subject to the jurisdiction of the local courts of the country in which they are serving or living. The foreign country may be willing, under an agreement with this country, to give up some of its sovereign rights and, as in the NATO status of forces agreement, grant some measure of jurisdiction to the military authorities of the sending state. In principle, the foreign country should equally be willing to grant jurisdiction to the sending state's civil authorities, sitting as appropriate in the state where witnesses may be more easily and readily available. In such a situation, a civilian court could be adjusted in its composition on the lines that the noble Lord has suggested, so that if the defendant is under 18 it would have an appropriate panel, as with juvenile courts in this country. I support the noble Lord.

Lord Mayhew of Twysden: The case made by the noble Lord, Lord Thomas of Gresford, as reinforced just now by the noble Lord, Lord Borrie, is enormously powerful. I look at this primarily from the point of view of sharing what the Minister has just said about the importance of providing and maintaining a comprehensive military justice system. That is important, but it is equally important not to overload that system or unnecessarily to present it with difficulties that can be avoided.
	Parliament has recognised the need for special safeguards when conducting trials of juveniles. It would be unnecessarily difficult for a court martial to apply those safeguards. The matter could be dealt with much more simply if the amendment, or words to its effect, were to be carried in due course. I recognise that the noble Lord, Lord Borrie, said that the precedents for all this go back to the 18th century, but there were not too many safeguards in our domestic law in the18th century for the trial of children under the age of 18. I very much look forward to the Minister's reply, which I hope will be favourable.

Lord Lyell of Markyate: I support the noble Lords who have spoken on this matter. I hope that the Minister will at least say that he will think very carefully and reflect on what has been said both about this matter and about the previous amendment. I hope that I can say that without being out of order. We are dealing with matters that are deeper than perhaps at first we realised. It may be that we should be debating this whole clause and that it needs more careful thought than it perhaps has yet had an opportunity of receiving. I say this with some modesty, because I am afraid that I was not able to be here when the matter was debated in July, as I was in hospital. I did not receive the Minister's letter, but I am trying hard to catch up. There are very serious issues here.

Earl Attlee: In the 1950s, it may have been impractical to send all the players to a Crown Court trial in the United Kingdom from, say, Hong Kong, but in this day and age it is relatively easy to go to a different country. I strongly support AmendmentNo. 60, but I am not so happy about the amendments to Clause 42 and onwards.

Lord Campbell of Alloway: The Minister was referring to a military law separate and distinct from the civil system. That was spoken to by noble and gallant Lords at Second Reading and lies, as the noble Lord has said, behind the basis of much of this Bill. I shall say no more now, because I shall refer to the matter when we consider Amendment No. 61, but I do not imagine that at Second Reading noble and gallant Lords had for one moment the position of juveniles in their minds.

Lord Kingsland: Regarding Amendment No. 60, I need do no more than respectfully adopt the interventions made by my noble and learned friends Lord Mayhew of Twysden and Lord Lyell of Markyate.
	I was struck by the uncharacteristically sheepish way—I use an appropriate Welsh image—in which the noble Lord, Lord Thomas of Gresford, spoke in opposing Clauses 42 to 49 standing part of the Bill. I am not sure why he did that. Was it because we had already heard from him at some length on the previous amendment and modesty overcame him? Or was it because he was not sure of his ground? I would like to think that it was the latter, because expunging those clauses from the Bill would tear the heart out of our traditional approach to the relationship between civilian and military law. If Clauses 42 to 49 were removed, you would be left with a statutory disciplinary system for the forces. That would fly in the face of the fundamental constitutional principle that has always lain at the heart of our approach to the Armed Forces—that a soldier, sailor or airman in the services is a civilian who is undertaking such tasks. He is a citizen in arms, if you like. If we stray from that, we unravel the approach that we have traditionally taken to these matters.
	I wonder how this amendment might apply. Perhaps a way of testing the attempt to remove Clauses 42 to 49 is to look at what would happen when our servicemen are abroad. That was touched on by the noble Lord, Lord Borrie. What happens in relation to the commission of criminal offences when servicemen are abroad? Currently, the civilian courts have extra-territorial jurisdiction only for a few serious offences. If you remove criminal conduct from the scope of the military justice system, there would be no means of prosecuting a soldier for an offence committed abroad that fell outside that limited extra-territorial jurisdiction. The only alternative, as the noble Lord, Lord Borrie, stated, would be to subject the soldier to a foreign local jurisdiction. In some cases, that would be impossible; in other cases, it would be highly undesirable, especially now, given the jurisdiction of the International Criminal Court. With great respect to the noble Lord, Lord Thomas, I suggest that removing the clauses would be wholly counterproductive. On this matter, the Government can rely on support from the Opposition.

Lord Drayson: I have listened carefully to the points made on the Floor of this House and my comments on Amendments Nos. 62 and 63 will be brief, in the interests of making progress. I was taken by a number of the points made by the noble Lord, Lord Thomas, in respect of juveniles, and those points were emphasised by the noble Lord, Lord Borrie. I shall go away and reflect on these matters, in so far as they apply to juveniles, and come back to the noble Lord.
	I believe that I have to be more robust on Amendment No. 63 because, as we have heard, it goes to the heart of the Bill. I have already spoken to the two key principles that we believe underpin what we are trying to achieve in this very important Bill for our Armed Forces in having a separate and comprehensive system of military justice. As I understand it, this amendment seeks to permit service personnel and civilians who are subject to service discipline to elect trial before civilian courts in the United Kingdom where those civilian courts have extra-territorial jurisdiction. I believe that that would significantly undermine those key principles; it would rip the heart out of the Bill and have a significantly detrimental effect on its standing. I therefore ask the noble Lord not to press that amendment.
	I should also like to make a point relating to personnel, whether they are civilians acting in arms, as the noble Lord opposite has just said, or whether they are taking part in operational or non-operational activities. In our modern environment, the types of operations that our forces undergo change very rapidly in a short space of time and can therefore be hard to define as active service in a warlike situation. We are seeing so-called "three-block" operations, where the situation can change extremely rapidly. Therefore, we do not believe that it would be helpful to make this distinction, as it would be impractical in defining active service or operational or non-operational theatre. I would have real difficulty with such a distinction.

Lord Thomas of Gresford: I am most grateful to noble Lords who have spoken in support of Amendment No. 60—in particular, the noble Lord, Lord Borrie, the noble and learned Lords, Lord Lyell and Lord Mayhew, and the noble Earl, Lord Attlee. I also include the noble Lord, Lord Kingsland. If I was perhaps sheepish on my side, he was not exactly bullish about supporting Amendment No. 60, but I think that he does. Indeed, he says that he completely supports it. I am grateful that the Minister is going to think about the problem in relation to civilian juveniles who have not signed up to the Army, the Navy or whatever but find themselves subject to courts martial.
	As to the objection to dealing with civil offences, the noble Lord, Lord Kingsland, is right. In my view, until the court martial system is completely consonant with the Crown Court—an aim announced by the Judge Advocate General, Judge Blackett—it is wrong that a serviceman should face a different tribunal for an offence committed in this country. I refer not to the more serious offences but to the ordinary, run-of-the-mill ones. It is wrong that he should face a completely different tribunal with procedures that are not as acceptable as those faced by the ordinary member of the public, who will be before the magistrates' court or the Crown Court for the same offence committed in this country.
	The noble Lord, Lord Kingsland, was right to point out the difficulties that apply to offences committed abroad. I agree with him that it is necessary to have a service disciplinary system that deals with criminal acts abroad. But it is a different matter when one asks whether it is right in this country to have a competing jurisdiction for a person just because he has signed up to the services and whether it is right that he should be at greater peril if he is charged with offences under one system than he would be under the other.
	I am grateful for the support in relation to juveniles, and I shall pursue that matter. My opposition to the wider picture is, as I said, part of a long-running campaign, which I cannot pursue further at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 42 agreed to.
	Clauses 43 to 49 agreed to.

Lord Kingsland: moved Amendment No. 61:
	After Clause 49, insert the following new clause-
	"RULES OF ENGAGEMENT
	(1) Where Her Majesty's forces are to be engaged in an operation the Secretary of State shall draw up a document to be known as the Rules of Engagement ("the Rules").
	(2) The Secretary of State shall cause appropriate extracts from the Rules dealing with particular aspects of the Rules to be made and set out on cards ("Cards").
	(3) When approved by the Defence Council the Rules and any Cards shall have the force of law under this Act.
	(4) The Rules and the Cards may be revised by the Defence Council at any time in the course of the operation.
	(5) A copy of the Rules shall be distributed to the commanding officer of every unit engaged in the operation and to the service prosecuting authorities.
	(6) Cards shall be distributed as appropriate by commanding officers to all members of Her Majesty's forces engaged in the operation and to any attached civilians.
	(7) It shall be an absolute defence to any charge alleging misconduct to show that the conduct concerned fell within the Rules.
	(8) The Secretary of State may direct that the Rules be classified to the degree that he considers necessary for the conduct of operations and shall be exempt from disclosure accordingly.
	(9) Cards shall not be classified and copies of them shall be placed in the libraries of each House of Parliament.

Lord Kingsland: What matters in this amendment is not the detail but the principle that lies behind it. In that sense it is a probing amendment. But it is an amendment of great importance, which was heralded during the Second Reading speeches from these Benches.
	The principle is that the rules of engagement should become an absolute statutory defence for a soldier on operations. It must follow, therefore, that the rules of engagement define the criminal law within which the soldier operates. We believe that the rules of engagement should take statutory form. Soldiers have to know where they stand when they are on operations. They are told that if they comply with the rules of engagement they are within the law. Why are the Government prepared to say that informally but not admit it publicly in the Bill? That is the question that the Minister has to answer. He will have some difficulty in doing that if his answer is not co-ordinate with the view that we take.
	Article 7 of the Human Rights Act requires that the criminal law should be composed of rules that have predictable outcomes. It requires that a subject—whether a soldier or a civilian—before undertaking a certain activity should know whether that activity falls within or outside the criminal law. Precisely the same principle should apply to a soldier on operations.
	I entirely accept that the details of the amendment might reasonably be criticised. We have taken a view about the right approach. We would welcome other views on how it should be applied; but we are convinced that the Government have to face up to this and include in the Bill an appropriate statutory defence. I beg to move.

Lord Garden: My Amendment No. 62 would add to the rules of engagement amendment, if they were to be put on a statutory basis. It is a question of what happens when servicemen find themselves operating under the rules of engagement of another nation. Members of the Committee may not be aware that this is happening as we speak.
	On 19 June, I received an Answer to a Written Question about the arrangements for Royal Air Force personnel embedded with US personnel on Predator drones perhaps thousands of miles away from the operations, but who can release weapons and are subject to somebody's rules of engagement. The Minister very helpfully told me:
	"UK embedded personnel act within US rules of engagement, may use US collateral damage methodology and work to US delegated authorities".—[Official Report, 19/06/06; col. WA 54.]
	So on certain occasions, people who are subject to our service law are subject to another nation's rules of engagement. That perhaps gives us an extra dimension of the problem of how we put rules of engagement on a statutory basis.
	Turning to the broader aspect of rules of engagement, I should be interested to hear the Minister's reaction. I am not sure whether it is a good idea. My first reaction was that when they are put on a statutory basis, there will perhaps be a tendency for them to be less flexible, which may make life more difficult. I am also slightly concerned that subsection (7) of the new clause makes observance of the rules of engagement an absolute defence. Of course, you are still required to be proportionate in your response at any stage of warfare. It may be that you can operate under quite robust rules of engagement, but the particular circumstances do not mean that you need to go to their outer edges; you could do something less damaging. We still need to be able to look at the proportionality argument.
	If we were to put rules of engagement on a statutory basis, we must consider how we handle being under those of other nations. I have yet to be convinced that this is the place to put them, however, and will wait to hear what the Minister has to say. I beg to move.

Lord Campbell of Alloway: My name is on Amendment No. 61, and I am grateful to my noble friend Lord Kingsland for his exposition of the importance of the principle at stake.
	I support the spirit of all these amendments. Why? Amendment No. 61—exclusively relating to written rules of engagement, albeit established by a somewhat Byzantine, insufficiently flexible process—could have served as a defence for Clegg, Scots Guardsmen Fisher and Wright and other cases. It must therefore be dealt with, and related and extended to AmendmentNo. 62A to include compliance with orders. It is not readily possible to distinguish between orders and rules of engagement, especially if they are given verbally in the field. Reverting to the principle expounded so well by my noble friend Lord Kingsland, a serviceman must know where he stands.
	The toil of drafting such an amendment could well be in vain, however. Such an amendment should never pre-empt what has been referred to as the new services law, separate and distinct from the civil system. That law on armed combat and peacekeeping recognises realities and, as the noble and gallant Lord, Lord Inge, put it, can be trusted by the servicemen. It would serve as a substantive defence on the basis on which the Army Board rejected the application of DALS for the discharge of the Scots Guardsmen.
	Here I have to declare an interest because I represented them before the Army Board on two occasions and prepared their defence, and called their evidence and that of their commanding officer, who is now General Sir John Kiszely. On the second occasion, General Sir Mike Jackson sat on the board and questioned in depth the three men who gave evidence: the two Scots Guardsmen and the general. The board came to the conclusion that the two guardsmen could not be discharged from the Army because the morning orders of the day for the guardsmen were to stop and search, their rules of engagement were, "Halt or I'll fire" and they were ignored twice. They only had before them a defence of self-defence, which was rejected by the judge, but there was no rejection of what was accepted by the Army Board and General Sir Mike Jackson, which was that they complied with their orders and rules of engagement. The transcript of those proceedings is lying around in the MoD somewhere and forms strong confirmation for the type of amendment on the broader scale that would subsume the amendment that could be produced out of Amendments Nos. 61, 62 and 62A.
	As the noble Lord, Lord Drayson, said, the concept of a military law separate and distinct from the civilian system was spoken to on Second Reading by the noble and gallant Lords, Lord Bramall, Lord Guthrie, Lord Vincent of Coleshill, Lord Inge, Lord Boyce, the noble Lord, Lord Ramsbotham, my noble and learned friend Lord Mayhew of Twysden and other noble Lords. It was heralded by the Judge Advocate General Judge Blackett—I am glad that my noble friend Lord Thomas of Gresford referred to him—in the evidence that he gave to the Select Committee in the other place. It was quoted by the noble Lord, Lord Ramsbotham, on Second Reading and was expressly accepted by the noble and gallant Lord, Lord Boyce. The noble Lord, Lord Truscott, who is an eminent historian, not a lawyer or a soldier, said:
	"If mistakes are made in the name of self-defence or in the heat of battle, the law and the courts should show understanding".—[Official Report, 16/2/06; col. 1276.]
	Lord Bramall, said:
	"Justice cannot be dispensed in a vacuum; it must depend on the circumstances prevailing at the time at the scene of operations and on the rules of engagement, if established".—[Official Report, 14/06/06; col. 242.]
	That remark was expressly approved by my noble and learned friend Lord Mayhew of Twysden, who is in his place. There is a matrix for an amendment which I hope may be tabled on Report that would subsume the three amendments to which we have been speaking.

Lord Vincent of Coleshill: On Amendment No. 61 I understand the concerns expressed by the noble Lord, Lord Garden, that rules of engagement becoming part of the Bill itself could complicate them unnecessarily and make them, in practical terms, less useful. That issue surely needs to be addressed. However, on the need to incorporate that amendment into the Bill, in principle I think that there is a case for it. The reason is that historically—certainly going back to when I started my military service and in the Second World War before that—the Geneva conventions and other international agreements sought to establish the rules of warfare.
	We have moved on vastly. You have only to look at Iraq and Afghanistan where our adversaries, or our potential adversaries—however you define them these days—do not see themselves subjected to any human rights or to any international law whatever. That is therefore a very important reason why our forces should have clear direction on the rules of engagement that should apply. Those should be on a legally sound footing so that if their interpretation of them is challenged in any way, there is something to base their judgment on.
	Additionally, after today, after the conflict phase of an operation, such as in Iraq, the situation is even more complicated. Very junior ranks indeed on the back streets of Basra will have to make up their minds in seconds about whether what action they take is legal. Therefore, I think that in principle Amendment No. 61 is important and should be given careful consideration, but taking account of the point made by the noble Lord, Lord Garden.

Earl Attlee: There is no doubt that there is a problem with rules of engagement, but I have some difficulties with Amendment No. 61. First, the details on the existing rules of engagement card do not seem to me to change from operation to operation. I can quote the exact words. They are engraved in my brain. In every operation the rules of engagement are the same. Secondly, subsection (8) says that the Secretary of State may classify the rules, but subsection (9) says that the cards should not be classified.
	Thirdly, and perhaps most importantly, the actual rules of engagement for an operation, which are issued by PDHQ, are contained in a massive and detailed document. It is not a little card, like my cue cards; it is a big document, and it is surprisingly precise. It might say that you can attack electricity pylons but not an electricity substation. The details would have to be classified because if the enemy knew what was in the detailed rules of engagement they would not need to defend that particular infrastructure and therefore could concentrate their defensive efforts on infrastructure that could be attacked.
	However, I have some sympathy with Amendment No. 62A. I was very surprised at what the noble Lord, Lord Garden, said about foreign rules of engagement and the Answer to his Written Question. I will certainly be talking to him later about that.

Lord Ramsbotham: I preface my brief intervention by saying how much I and, I suspect, many of my colleagues have appreciated the care with which the noble Lord, Lord Drayson, has kept us in touch with the process of this Bill and has made certain that we were briefed during the various movements on it. It is highly appreciated and we are very grateful.
	I support what the noble Lord, Lord Kingsland, said. As the nature of operations changes into what General Sir Rupert Smith described in his book as "a war amongst the people", it is ever more important that every member of our Armed Forces committed to such conflicts is absolutely crystal clear on what are the rules of engagement before they are committed to those operations. That means that those rules of engagement must have been considered and worked out in advance by the Secretary of State and the chain of command downwards to include every individual. I suspect that some of the problems in Iraq have arisen because those rules of engagement were not absolutely crystal clear in the minds of everyone concerned. Therefore, it makes sense that the requirement to do that should be in statute so that it cannot be fudged before people are launched.
	I also support the intent behind AmendmentNo. 62 because one type of operation on which we are embarked—United Nations operations—is one in which there is the most complicated preparation of rules of engagement, which will differ in each operation and will apply to contingents from a large number of different forces. Therefore, it is essential, where we are involved with forces from other nations, that those compromises are reached—again, before we go on operations. It is essential, although this is not in the nature of the Bill but in the reform of the United Nations, that we set up machinery to make certain that the rules of engagement of all those committed to United Nations operations are sorted out in the same way as they should be for national operations. That remains paramount.
	I support Amendment No. 62A, tabled by the noble Lord, Lord Campbell of Alloway, because it seems to me to be part of the glue that ties the three amendments together. I therefore support the idea that the three should be taken and considered in great detail before it is decided whether to include them.

Lord Thomas of Gresford: I follow the noble Lord, Lord Ramsbotham, in his expression that the rules of engagement should be crystal clear. The noble and gallant Lord, Lord Vincent, also called for clear direction. My experience relates to the paratrooper trial that took place in Colchester last September—a year ago. One problem that emerged in that case was that no one knew what were the precise rules of engagement. The issue did not arise for several weeks; in preparing the case, the prosecution had not set out what were the rules of engagement.
	The defendants were of the view that they were operating at the time—which was after President Bush had declared victory and soft caps were being worn by the British military—on Northern Ireland rules. It subsequently emerged that the rules of engagement had not changed and that at the time, they were still operating on the rules of engagement for the invasion of Iraq, which were far more drastic in neutralising the enemy than anything that happened in Northern Ireland.
	There was no communication to the soldiers, who were simply on patrol in the Maysan province, as to what they could and could not do—at least, no direct indication to them. I think that they were operating on the basis that an officer had said to them, "Okay, boys, now it's Northern Ireland rules; we can all relax a bit". That is about as far as it got. There was no crystal clear direction as to what they should do.
	Of course, the rules of engagement change. The FRAGOS—a phrase that will be familiar to those with a military background—seem to bring in various additional rules for operations as they progress. The rules of engagement may shift from time to time, but it is very important, if there is a change, that the people charged with the responsibility—the people who will end up at a court martial—are aware of the significance of the rules and of the parameters within which they can act. I fully support the amendment.

Lord Lyell of Markyate: I, too, rise to support what my noble friend Lord Kingsland said, including the fact that this is to some extent a probing amendment. This is a very difficult subject. I remember being involved in the development of the rules of engagement when we were involved in Yugoslavia. This included cards—I seem to remember that they were, perhaps appropriately, yellow in those days—and getting the exact wording right. The card is what is handed to the soldier, who is likely to find himself in the law court, but behind it lie much more complex rules of engagement, to which the noble Earl, Lord Attlee, rightly referred. It would greatly assist our future debates on this matter if the Minister would either put at least some of the rules of engagement into the Library or write to us with copies of them, for use with appropriate discretion if necessary. I hope that it is not necessary—I hope that he can put them into the Library—but if he cannot, surely we can at least be provided with them in sufficient detail so that we can all apply our minds to the very difficult questions that can arise.
	It is essential that each serviceman should be provided with the guidance and protection that he needs. It should be remembered that the rules of engagement on the card with which he is provided will almost inevitably require him to judge whether his life is in danger and possibly to justify that at some point. It may be necessary and right that he should do so. I can see difficulties in putting the requirements on to the statute book, but it is well worth trying to do so. At the heart of the Bill is a system of military law that applies to all the services and which provides them with a proper framework of law and a proper court framework, which is largely the court-martial framework, but which does not divorce them from their position as civilians—or at least as citizens—and that is part of the normal framework of the law so far as possible. The rules of engagement are a very important part of this, and we have a good deal more exploring to do, but I commend the amendment as a good start.

Lord Craig of Radley: Before I had given a lot of thought to this topic, I did not think that the rules of engagement should be in the Bill. Further thought on my part and the debate so far have strongly reinforced my second view that there is a place for covering rules of engagement in the Bill. Some excellent points have been made by noble Lords and noble and gallant Lords, so I do not intend to repeat them.
	It is, however, important to highlight the fact that the amendment would make it absolutely clear that the rules of engagement have been endorsed by Government and the Secretary of State, and that the military are operating those rules of engagement, having been given the direction and guidance of Ministers. Without that, there is a possible danger that, in the post-hostilities phase, questions will be asked about whether the military have been following the guidance and the direction that they had been given. I therefore strongly endorse the amendment because it brings to the fore the fact that it is a ministerial and political initiation, which gives the guidance and direction to the servicemen who will be carrying out the operation.

Lord Inge: I, too, support the inclusion of the rules of engagement. Perhaps I may sound one word of caution: the Bill refers to the Defence Council agreeing those rules of engagement. In my six years of experience in London, I think that the Defence Council met twice. If this is to be in the Bill, there must be a system that allows the rules of engagement to be amended quickly if the hostilities on the ground change one way or the other.

Viscount Slim: I, too, support the amendment. It seems that it is the luckless soldier who gets court martialled if things go wrong, and there may be times when he is to blame. However, by ducking the issue and not having something on it in the Bill, the Government are wriggling and not taking responsibility.
	As I think noble and gallant Lords have mentioned, responsibility should be driven right up the chain of command. That is so important. It may be unpopular, but perhaps a senior officer or a Minister will have to explain himself in a court case, which would be no bad thing.
	The noble Lord, Lord Campbell of Alloway, made some startling points. We were together on the business in Ulster when we rehearsed it and explained it in your Lordships' House. Out of that came one thing that I would say to the Minister: I understood that about 140 to 150 shots were fired in that instance—which is quite separate from other instances—and it was night time. Only one person was hit. I call that extremely bad shooting and marksmanship. I would have had that group out very early the next morning for some good battle firing training. From that, when the noble Lord gives your Lordships' House figures on casualties in Afghanistan, I hope that the figures of the Taliban dead are pretty accurate. Have the bodies been counted or are we still shooting an awful lot of ammunition?

Lord Drayson: I will write separately to the noble Viscount on his question relating to the situation in Afghanistan.
	I have listened carefully to the points made today, which reflect the central importance of this issue. I will respond in considerable detail because they are so important. However, before I do so, I should like to make two points that go to the heart of the issues that we are debating. The noble Lord, Lord Kingsland, said that he understood that soldiers who act in accordance with the rules of engagement would therefore be in compliance with the law. It is important to say that that is not the case. Soldiers are told that the rules of engagement mean that the operations that they are undertaking are consistent with the law, but it is still up to individual soldiers how they carry out their role in these operations. That reflects the fact that the rules of engagement are an operational framework, which I will come back to in some detail in a moment. They are not a legal document.
	In response to one of the important points made by the noble Lord, Lord Campbell, about the situation where a soldier makes a mistake, it is important for me to reassure the Committee that if a soldier acts in combat on his view of the situation, even if it is wrong, he will not be guilty of a crime. That is a fundamental principle, which we need to keep clearly in focus as we consider this matter. These are difficult issues. A noble Lord described the rules of engagement as a Byzantine process. I understand why there is a feeling that that is the case, which is why I have taken considerable trouble to give Members of the Committee an opportunity to understand that process. We had a briefing earlier in the summer about the rules of engagement.
	Fundamentally, from listening to the argument across the Committee, I believe that there has been, and still is in some quarters, a misunderstanding of the functions of rules of engagement in the modern situation. The rules of engagement give a framework for the conduct of an operation, which will be consistent with the law. They are often extremely complex and are always confidential. For them not to be confidential would put information into the public domain; that information would then be available to the enemy, which would be very prejudicial to the interests of our Armed Forces. We need to recognise that these rules of engagement are drafted by our Armed Forces personnel for operational purposes. They are not drafted as statements of the law. It is vital that they should not be. To draft them in such a way would make them much less effective in operational circumstances. It is important that we keep that very much in the forefront of our thinking. Rules of engagement are not drafted like law.

Lord Campbell of Alloway: I apologise for intervening, but we are coming to a crucial point. Does the noble Lord accept that, at times in action, it is virtually impossible to distinguish between rules of engagement and orders, and that you have to rely on a presumption of compliance, throwing the burden on the Crown to disprove and to show that there was intent not to comply? In other words, both have to be carried together. They cannot be separated.

Lord Drayson: The noble Lord, Lord Campbell, raises an important point when describing the similarity between orders and the detailed nature of rules of engagement. He has also emphasised the point to which I alluded at the beginning of my response, which is the importance of the intent to do wrong. The noble Lord is right. We have heard on the Floor of this House as we have debated this issue in the past how in combat this may be a split-second decision made in very difficult circumstances. I remember vividly the description that the noble Viscount made to me earlier this year of a soldier going into a dark room, seeing a person and having to make a split-second decision that could cost him his life if he got it wrong. We understand those concerns. None the less, the issue is whether the person acted in combat on his view of the situation as I have described it and what his intent was in that situation. It is important to recognise that if he acts on his view, even if he gets it wrong, he has not committed a crime. Therefore, trying to use the rules of engagement framework, which is designed to enable our commanders to carry out an operation that may be extremely complex, as a document for protection under the rule of law—and so to combine those two things—would act in a way that was prejudicial to operational effectiveness.
	It is important for us also to bear in mind the fact that in some cases we need to leave important decisions relating to these matters to the operational commanders in the field. I know that the commanders welcome this responsibility. The concern has been raised about whether our soldiers are clear about the rules of engagement. This is a matter that both personally and as a Minister I have asked soldiers about when visiting them on operations, and I believe that they are clear. One might say, "The soldiers would say that to a Minister", but when one reads some of the reports of operational commanders coming back from theatre and their responses to whether they are clear about the rules of engagement, I believe that they are clear and I do not believe that we have a fundamental difficulty in this area.
	If the rules of engagement were to have the force of law and provide an absolute defence, as is being suggested, they would have to take away what I have described as vital operational discretion. They would have to attempt to set out exactly how each commander and each soldier should respond to every situation. As the noble Earl said, losing that confidentiality would be prejudicial. It is also true to say that we would lose the ability to respond to the situation on the ground. The noble Lord, Lord Ramsbotham, made the point about the fluidity of situations and how they may change. That is absolutely true. We have heard also the noble and gallant Lord, Lord Inge, talk of the frequency with which the Defence Council meets. We must recognise that we need a process that enables the framework of the rules of engagement for a mission to be modified and adapted by commanders as they see fit in the terms as they find them when on operations. If we had to wait for revised rules of engagement so as to make them compliant from a legal point of view, that would of course delay the process.
	We must also recognise that the rules of engagement for a particular operation are supplemented by detailed guidance and are adapted for commanders as well as for soldiers, sailors and airmen according to their missions. We heard the noble Earl, Lord Attlee, describe the cards and we discussed them at the briefing meeting; they used to be yellow, as the noble Earl pointed out. We believe that commanders at every level well understand their responsibilities to ensure that those under their command receive appropriate guidance and training and understand the nature of their task. Commanders also understand when the cards, briefings, training and orders are the best way to achieve that. The cards are issued as guidance. A good example of this was the aide-mémoire issued to personnel deployed to Iraq during the Operation TELIC war fighting phase, which concerned duties towards prisoners of war and civilians under the law of armed conflict. I do not believe that rules of engagement drafted as the amendment proposes would make the individual any safer from prosecution. Rules of engagement can never flout the law. If compliance with them gave an absolute defence, the police, prosecutors and courts would have to analyse and dissect them to establish whether the individual service man or woman was guilty of an offence.
	In conclusion, I genuinely believe that this amendment would be disastrous. It would tie the hands of our commanders and all our service people; it would not simplify the law and it would not simplify the sort of decisions that servicemen will always have to take in the difficult circumstances and situations that I have described. It would introduce legal encirclement where it does not exist now.

Lord Garden: From what he has said, I do not think that the Minister intends to address my Amendment No. 62. However, I would be interested in his views on how this works when another nation is providing the rules of engagement and how we in the United Kingdom keep control over those rules.

Lord Drayson: I will deal with Amendment No. 62 because it is important. The noble Lord is absolutely right: we have situations where rules of engagement are provided for our service personnel operating, using the example that he gave, with the Predator. The amendment seeks to increase scrutiny of the rules of engagement of other countries where our forces act under them. These are unusual circumstances, but they do arise. UK personnel are permitted by the UK Government to participate in operations while embedded in the forces of another state. In that case, they may operate under the rules of engagement of that state's forces.
	Where UK personnel are acting under the rules of engagement of another state, we ensure that the legal basis for those rules and for the proposed targets is consistent with ours. Embedded UK personnel will be provided with UK guidance to ensure that they stay within the relevant UK domestic and international law, but the proposed amendment would require the UK to insist that other states turn their rules of engagement from an operational document into a comprehensive legal document—a point that I discussed when speaking to the previous amendment. As I have explained, the other state would no doubt object to that process for the reasons that I have already given. We know of no state in which the rules of engagement have the force of law as described, so providing an absolute defence against any charge. In short, for the reasons that I have outlined, I ask noble Lords not to press Amendments Nos. 61 and 62.
	Amendment No. 62A would provide that conduct does not amount to a service offence in three different circumstances: when the person was acting in the execution of the law; when his conduct was obedient to a lawful order; and when his conduct was obedient to an unlawful order that he did not know was unlawful and could not reasonably have been expected to know that. I touched on some of these issues at the beginning of my remarks in order to make the central point. I recognise that the new clause again reflects a genuine concern—in the Ministry of Defence we appreciate absolutely the genuine concerns over this issue; it is one that we think about and take a lot of trouble with—that a soldier might be found guilty of a crime where there was no real fault on his part. Although these concerns are justified, we believe that, in the context of the overriding responsibility that a soldier has to act, where he has acted,
	"in execution of the law",
	subsection (a) provides a defence. I am not clear whether the clause seeks to excuse a person who acts with a lawful excuse or one who acts because he is engaged in some form of law enforcement. I think that it must mean the second of these, because if a person has a lawful excuse for his action, he is not guilty of a crime. Assuming that it refers to conduct carried out during law enforcement, I recognise that such tasks are sometimes dangerous and require quick thinking under pressure, as is the case on force operations. But in such cases, again, a person cannot be above the law. The law decides in such circumstances whether a person's conduct was lawful on the basis of how that person viewed the situation. So even if a person misread the situation, the law would not condemn someone who had responded reasonably to circumstances as they saw them.
	An order will not be lawful if it requires a serviceman to commit an offence, so I do not really understand the second case. If an order does not require him to do anything illegal, but the serviceman decides to carry out the lawful order in an unlawful way, then it is right that he should be guilty of an offence. Thus, where a soldier is given a lawful order to capture a town, for example, it does not mean that he can do anything to capture it, such as killing prisoners or civilians.
	The third case covered by the new clause arises where a person is ordered to do something that is in fact unlawful but he does not know it and could not reasonably be expected to know it. I cannot think of any circumstances where a person charged with a serious offence on these facts would not have a defence. Serious crimes, including war crimes, require actual knowledge of the facts that make the act unlawful.
	I believe that this amendment would put our forces in a worse position than the law requires. For a war crime—and the same is true under international law—guilt depends upon actual knowledge. The amendment suggests that a person should be guilty if he might reasonably be expected to know the facts.
	Service personnel do not and should not operate within a legal vacuum, here or anywhere else in the world. Indeed, it is a hallmark of the respect in which our Armed Forces are held around the world that they operate within the law. But the law that governs their conduct and the defences that are available to them are, I believe, both clear and reasonable. This amendment would not help them. On that basis, I urge the noble Lord not to press Amendment No. 62A.

Lord Kingsland: I am grateful to the Minister for his reply and to all noble and gallant, noble and learned and noble Lords for their contributions. I am particularly grateful to the noble and gallant Lords, Lord Inge, Lord Vincent and Lord Craig, the noble Lord, Lord Ramsbotham, and the noble Viscount for their support for at least the principle of the amendment, if not necessarily the detailed drafting.
	Between them they raised some very important points about contemporary warfare. The noble and gallant Lord, Lord Vincent, reminded us that we are dealing with a very different kind of foe from the one we dealt with in the 20th century. We are dealing with enemy soldiers who do not respect any principles of international law, while we are required to do so. This is a very different world from the one that we had only recently to cope with.
	The noble and gallant Lord, Lord Craig, made an extremely penetrating intervention in which he reminded us of the importance of political commitment to our Armed Forces. We have seen some examples recently of politicians trying to distance themselves from some of the things that the Armed Forces have sought to do. It is absolutely critical for the morale of our Armed Forces that politicians are seen to stand four-square behind everything the forces do. In my submission, that would be one of the beneficial effects of these amendments.
	Our soldiers are now operating in a world where we have an international criminal court and an international criminal convention, and where some other nations might take the view that we are engaged in unlawful warfare, making each soldier a criminal in everything he does. These are very uncertain times for our Armed Services and they need the confidence that we can give them by including this amendment on the statute book.
	The noble Lord, Lord Garden, said one of the difficulties about an amendment like this was the question of proportionality. A lot of people think that proportionality was invented by the human rights convention; but the concept has run through our military law for hundreds of years. The principle is simply that a soldier has to use reasonable force. If, in any circumstances, a soldier uses unreasonable or disproportionate force, he contravenes the criminal law. That applies not only to the black-letter law but also to the rules of engagement. There is no difference.

Lord Garden: I am grateful to the noble Lord for giving way. My only point is that subsection (7) states:
	"It shall be an absolute defence to any charge",
	that the conduct falls within these rules. I wonder how proportionality works under those circumstances.

Lord Kingsland: The "absolute" refers to the defence itself. But, of course, if a soldier who operates within the framework of a rule of engagement acts disproportionately, he will not have that defence. That must follow, not from anything in the Human Rights Act, but from a very long-standing principle of the common law. In any service context the force one uses, whether soldier, airman or sailor, must be reasonable. That principle can never be removed. I suppose it is possible that a Government could remove it by statute, but I cannot think of any Government who would be foolish enough to do so. It underlies everything and would obviously qualify the application of any rule, whether it is the criminal law or a rule of engagement.
	I was therefore extremely disappointed at the Minister's response. We accept that the drafting of these amendments could be improved. Having heard the points made by noble and gallant Lords, I would probably want to come back on Report with something much simpler as far as Amendment No. 60 is concerned. In addition, we very much take the point made by the noble and gallant Lord, Lord Inge, about the defence cuts.
	The Minister suggested that the rules of engagement—I am trying to remember exactly what his words were—provided simply an operational framework. That would seem to provide no comfort at all to our Armed Forces, and I am very puzzled by it. Is the Minister saying that, if a soldier operates within the rules of engagement and uses reasonable force in the circumstances, that should not be an absolute defence to his conduct? Would the Minister be prepared to see a newspaper tomorrow morning report him as saying that, despite the fact that a soldier conforms with a rule of engagement and exercises reasonable force in the circumstances, he is capable of being prosecuted for murder? Is that what he is saying?
	The Minister has not responded to that so I will leave him to think about it. Meanwhile, I beg leave to withdraw the amendment.

Earl Attlee: Perhaps I may urge the Minister to make available privately a viewing of the rules of engagement. If he did that, the Committee would get a better understanding of what he has been saying.

Lord Drayson: We had a meeting earlier in the year about the whole area of the rules of engagement and a briefing on the subject. If it would be helpful for noble Lords to have a further meeting and discussions, I would be more than happy to have them.
	I recognise the complexity of the area but I sincerely believe, having listened to the arguments from across the Committee, and again from the noble Lord, Lord Kingsland, that there is a fundamental misunderstanding. Perhaps this misunderstanding comes from the fact that the rules of engagement are confidential and we are not in a position to go through the detail of them with noble Lords.
	In response to what the noble Lord, Lord Kingsland, has just said, I reiterate that it is not just a question of whether the individual soldier has operated in compliance with the rules of engagement; it is still up to the individual how he carries out the task. That individual responsibility cannot be overridden by the operational orders and operational framework as described in the rules of engagement. Does the noble Lord accept the point—which I have, perhaps, laboured—that the purpose of the rules of engagement is primarily to enable our commanders to operate effectively in the field? We must make sure that in our wish to provide a framework to strengthen the defence for our Armed Forces personnel we do not prejudice the whole purpose of the operation and of the rules of engagement. I would be interested to know whether the noble Lord accepts that point.

Lord Campbell of Alloway: Will the framework safeguard honest mistake? This is a relevant consideration in liability for murder or anything else.

Lord Drayson: On the point made by the noble Lord, Lord Campbell, the answer is yes.

Earl Attlee: The Minister cannot be faulted on the briefings he gives us. I suggest that he privately lets us see an out-of-date set of rules of engagement. In that way, noble Lords would have a much better understanding of what the Minister is saying.

Lord Drayson: I am most grateful. That is an excellent idea; let's do it.

Lord Kingsland: The purpose of the amendment is to assist not the commanders but the soldiers, who, after all, do the actual fighting. I understand entirely the Minister's concerns about confidentiality; but I am quite sure we can devise an amendment which protects that while providing the protection which I believe the soldiers need.
	I do not understand why the Minister will not respond to the question I put to him earlier. I will put it to him again: is he saying that a soldier who conforms to the rules of engagement and exercises only reasonable force in the circumstances in accordance with the common law could nevertheless be prosecuted for murder? Is that what the Minister is saying?

Lord Drayson: I do not believe it is helpful for us to continue the debate in this way this evening. I am prepared to meet the noble Lord to discuss this further and to write to him. It is clear that we need to have further discussion. I will read Hansard and fully reflect on what has been said this evening. I ask noble Lords, if they have the time, to reflect on what I have said this evening and to meet me. The noble Earl's suggestion that we look at an out-of-date and no longer confidential set of rules of engagement is a very good idea which I think will help us to clarify some of these issues.

Lord Garden: The debate has been extraordinarily useful. I remain uncertain about the effect of putting the rules of engagement on a statutory basis, but we should consider their status within the framework of the Bill. I beg leave to withdraw the amendment.

Amendment No. 62, as an amendment to Amendment No. 61, by leave, withdrawn.
	Amendment No. 61, by leave, withdrawn.
	[Amendment No. 62A not moved.]
	Clause 50 agreed to.

Lord Thomas of Gresford: had given notice of his intention to move Amendment No. 63:
	After Clause 50, insert the following new clause-
	"EXTRA-TERRITORIAL JURISDICTION
	Where the courts of any part of the United Kingdom have extra-territorial jurisdiction under statute to try, determine or punish any service offence committed abroad, the person accused may elect to be tried in the United Kingdom for the offence."

Lord Thomas of Gresford: I had not appreciated that Amendment No. 63 was grouped with the earlier set of amendments and did not address it. I do not propose to take the matter any further this evening because I have had the Minister's reply on this point. Since I have not had the opportunity of advancing the argument in favour of this amendment, I shall do so at a later stage.

[Amendment No. 63 not moved.]
	Clause 51 agreed to.

Earl Attlee: moved Amendment No. 64:
	Before Clause 52, insert the following new clause-
	"PERSONS SUBJECT TO MILITARY LAW
	Every person subject to military law shall readily be able to determine who is his commanding officer."

Earl Attlee: I should like to speak to Amendments Nos. 65 to 68 as well. The service discipline Acts refer extensively to the term "commanding officer". Service people will normally know who their commanding officer is, but those reading the Bill and the existing service discipline Acts may not realise that the power of the commanding officer can be delegated, particularly under the summary dealing regulations—often, in the Army, to the officer commanding, who would be a major, or the equivalents in other services. The orderly officer may have some of the powers of a commanding officer, particularly to put service persons in custody temporarily, immediately and maybe in an emergency, when the commanding officer is not available. It would be helpful if the Minister could explain the extent of this ability to delegate the powers of the commanding officer.
	On Amendments Nos. 65 to 68, the Bill allows the commanding officer to deal summarily with junior officers. This is a new development. As the Bill is drafted, the commanding officer—a lieutenant-colonel, say—can discipline a major, who could be his second-in-command. Many commanding officers I have talked to are, to say the least, uncomfortable with the possibility of having to discipline their second-in-command. Can the Minister assure me that the summary dealing regulations will not allow the commanding officer to deal with his immediate subordinate officers and that the regulations will provide a two-rank gap between the commanding officer and the officer he is dealing with? If he can, why does the Bill not provide for that in the first place?
	Finally, Amendment No. 68 makes it clear that volunteer reservists are subject to military law whenever they are on military premises. At present, they are no longer subject to military law after the end of the dismissal parade, which leaves a bit of a gap in service law. I hope the Minister can reassure me that the Bill deals with that. I beg to move.

Lord Drayson: I will deal with Amendment No. 64 first and then go on to Amendments Nos. 65 to 68.
	Amendment No. 64 seeks to provide that every person shall readily be able to determine who his commanding officer is. I understand that, through this amendment and others he has tabled about the terms "officer" and "superior officer", the noble Earl seeks clarity for soldiers, sailors and airmen. I am pleased that we have a common aim in that regard.
	As the noble Earl has said, I have written to him on these issues. I hope that he is reassured that through the regulations we will be able to achieve the clarity he seeks. I am willing to meet with him to discuss that further. I recognise that in the Bill overall, there is a significant reliance on trust in certain aspects. The regulations that will be brought forward will meet some of the issues which noble Lords have raised in a number of briefings. I will be happy to meet the noble Earl to go through that further.
	The combined effect of Amendments Nos. 65 to 67 would be to reduce the highest rank of officers that may be dealt with summarily from commander and equivalents to lieutenant and equivalents, to remove the power to deal summarily with warrant officers, and to require the commanding officer to be at least two ranks above the accused before he may hear a charge summarily. Perhaps I may explain the position under the current service discipline Acts.
	For the Army and the RAF, warrant officers and officers up to the rank of lieutenant-colonel or wing commander are dealt with summarily by an appropriate superior authority—that is, a senior officer of one-star or two-star rank who has powers of punishment over those individuals. In the Royal Navy, warrant officers and officers up to the rank of commander are dealt with by the commanding officer if he is at least two ranks above the rank of the accused and otherwise by the appropriate superior authority.
	Under the Bill, we have removed the concept of an appropriate superior authority and provide instead for these individuals to be dealt with by the commanding officer. But it will, as now, be possible to appoint a commanding officer to an individual for a specific purpose in regulations. So the Bill retains the current power to hear charges summarily against all ranks up to those of commander and equivalents, but the regulations will ensure that they are heard by an officer of an appropriately senior level. Specifically, the commanding officer must be two ranks above the accused. I trust the noble Earl is reassured on those two aspects.
	Finally, Amendment No. 68 would make reservists subject to service law when on a service base, ship or aircraft. Clauses 360 and 361 set out the circumstances in which reservists are subject to service law. These provide that they will be subject to service law when they are carrying out any activities as reservists.
	To extend this in the way in which the noble Earl's amendment seeks would be to make it unnecessarily wide. The services have no desire to extend the times when reservists are subject to service law in this way, and believe that it is important to link the times when a reservist is subject to service law to the activities in which he is engaged, rather than where he is located.
	Additionally, the Bill already provides that a person is "subject to service discipline" while he is in one of Her Majesty's ships afloat or one of Her Majesty's aircraft in flight. This applies to a reservist as well as anyone else who is not subject to service law. On the basis of this explanation, I ask the noble Earl to withdraw his amendments to this clause.

Earl Attlee: I am grateful for the Minister's explanation. I have some queries, but I shall follow them up by other means. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 52 [Charges capable of being heard summarily]:
	[Amendments Nos. 65 to 68 not moved.]
	Clause 52 agreed to.
	Clause 53 agreed to.
	Schedule 1 agreed to.
	Clauses 54 to 57 agreed to.
	Clause 58 [Time limit for charging civilian formerly subject to service discipline]:

Lord Drayson: moved Amendment No. 69:
	Page 26, line 28, leave out subsections (5) and (6) and insert-
	"(5) Subsection (6) applies to a person-
	(a) who ceases to be a civilian subject to service discipline by reason only of- (i) leaving an area designated for the purposes of Schedule 15; (ii) entering the British Islands; or (iii) leaving an area which a designation under paragraph 7 of Schedule 15 specifies as an area that he must be in for the designation to apply to him; and (b) who is residing or staying in a qualifying place at the time he does so.
	(6) As regards that time, and for so long after that time as he continues-
	(a) to reside or stay in a qualifying place, and (b) to be a person who is not a civilian subject to service discipline but who would be such a civilian if he were in a qualifying place, he is to be treated for the purposes of this section (apart from subsection (5)) as being such a civilian.
	(7) In subsections (5) and (6) "in a qualifying place" means-
	(a) in relation to a person who falls within subsection (5)(a) by reason of leaving an area designated for the purposes of Schedule 15, in any such area; (b) in relation to a person who falls within subsection (5)(a) by reason of entering the British Islands, outside the British Islands; (c) in relation to a person who falls within subsection (5)(a) by reason of leaving an area mentioned in subsection (5)(a)(iii), in that area."
	On Question, amendment agreed to.
	Clause 58, as amended, agreed to.
	Clauses 59 and 60 agreed to.

Lord Astor of Hever: moved Amendment No. 70:
	After Clause 60, insert the following new clause-
	"TIME LIMIT FOR CHARGING SCHEDULE 2 OFFENCES
	(1) Where an investigation has been opened by the service police under the authority of the Director of Service Prosecutions into an alleged Schedule 2 offence, the Director shall, except as otherwise provided in this section, bring the case to court or withdraw it within one year of the opening of that investigation.
	(2) Where the Director has reasonable grounds for seeking an extension of time for the investigation and preparation of a case, he may, within one year of the opening of that investigation, apply to the court for an extension of time for that purpose.
	(3) On an application by the Director for an extension of time under subsection (2), the court may hear any related application on behalf of the defendant and shall grant an extension of not more than a further twelve months on such conditions as it considers appropriate.
	(4) In the event that the case is not brought to court before the conclusion of the period allowed (including any extension),the defendant may apply to the court to have the prosecution by the Director permanently stayed and for the case to be remitted to the commanding officer concerned for a summary hearing.
	(5) On the hearing of an application by the defendant under subsection (4), the court shall order accordingly.
	(6) For the purposes of this section a case shall be considered as "brought to court" on the day upon which the prosecution opens its case."

Lord Astor of Hever: The Minister has very helpfully written to me to point out the drawbacks of our amendment and we accept his points. I am therefore happy to withdraw the amendment if we receive an undertaking from the Minister at the Dispatch Box that the Government recognise the importance of avoiding unnecessary delay and are working hard on streamlining the process.
	The length of time that certain recent cases have taken to be brought to court is, I believe I can fairly say, universally abhorrent to all Members of your Lordships' House, as it is to the Armed Forces. I beg to move.

Earl Attlee: I shall not speak to AmendmentNo. 71.

Lord Garden: As far as the principle of the amendment of the noble Lord, Lord Astor of Hever, goes, anything which compresses the time is very welcome, but I have concerns about the practicality, which the Minister may well want to address. It is ultimately a question of there being enough time for justice to be done, but I will wait to hear what the Minister says.

Lord Drayson: I am grateful to the noble Lord for his response to my letter, and I am happy to assure him categorically of the absolute need to avoid unnecessary delay. We need to streamline our process, but we need also to ensure that it is done in a way which is consistent with justice.

Lord Astor of Hever: In the light of the Minister's undertaking, I am very happy to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 61 [Sections 55 to 60: exceptions and interpretation]:
	[Amendment No. 71 not moved.]
	Clause 61 agreed to.
	Clauses 62 to 66 agreed to.
	Clause 67 [Power of arrest for service offence]:
	[Amendment No. 72 not moved.]
	Clause 67 agreed to.
	Clauses 68 to 75 agreed to.
	Clause 76 [Stop and search by persons other than service policemen]:

Viscount Simon: There is an error in the Marshalled List. Amendment No. 73 should come after Amendment No. 75.

[Amendments Nos. 74 and 75 not moved.]
	[Amendment No. 73 not moved.]
	Clause 76 agreed to.
	Clauses 77 to 90 agreed to.
	Clause 91 [Entry for purpose of arrest etc by other persons]:

Lord Garden: moved Amendment No. 76:
	Page 43, line 7, leave out "An officer" and insert "A commanding officer or an officer designated under subsection (7)"

Lord Garden: In moving the amendment, I shall speak also to my other amendments in this grouping. They are an odd ragbag and are probably better dealt with together.
	Amendment No. 76 is designed to be helpful and to clarify what Clause 91 is about. One has to get to the very last section to discover that it is about commanding officers and how they are delegated. My amendment would clarify that from the outset and make the clause easier to read.
	I have tabled a number of amendments toClause 100: Amendments Nos. 78 and 82 to 86. They have been grouped together because they all have something to do with time. Amendment No. 78 would put some limit on how long a review can be postponed if a commanding officer is not readily available. I propose 96 hours, although I have no particular attachment to that figure if there is a better one, but I feel that noble Lords would want to know that there is a time limit of some sort for this process.
	Amendment No. 82 also relates to time periods in the review of custody by the commanding officer in Clause 100. The word "approximate" is used for the various time limits. I am not a lawyer, but "approximate" seems to be a rather strange word to use. Why can we not define maxima, rather than just leave it up to our learned colleagues to debate how approximate "approximate" is?
	Amendments Nos. 83 to 86 are rather more serious. They would set a unified cut-off age rather than have some provisions that apply for age 17 and others for those aged under 18. Following the Deepcut inquiry, it is clear that we need to take special measures for under-18 year-olds when the Armed Forces are dealing with them. Therefore, wherever the age 17 appears in the Bill, I have raised it to age 18. I do not doubt that the Minister will tell us that the legislation is merely in line with civil law, but how under-18s are used in the service environment is a different matter. I beg to move.

Earl Attlee: I shall not speak to AmendmentNo. 77.

Lord Drayson: Amendment No. 76 is unnecessary. Clause 91 allows a commanding officer to authorise any member of the Armed Forces who is not a service policeman to exercise similar powers to enter and search premises to make an arrest as those afforded to the service police under Clause 90. This reflects the fact that service police are not always readily available.
	I will deal now with Amendments Nos. 78 and 82, which relate to the regime for custody. These provisions are very little changed from the current regime under the SDAs, which were introduced in the Armed Forces Discipline Act 2000, which themselves were based upon provisions in the Bail Act 1976 and the Police and Criminal Evidence Act 1984. With regard to Amendment No. 82, for example, the provision regarding timings being approximate in the Bill is identical to the PACE provision and allows the arrangements to work in practice.
	Amendment No. 78 could have the effect of extending the period which the commanding officer alone can authorise an accused to be kept in custody without charge, without making an application to a judge advocate. In the interests of the accused, this should not be a power that applies in all cases. We have, however, already provided, in Clause 102, for a commanding officer to be able to do this in extremis where it is not practicable to get before a judge advocate within the 48-hour period, but this is subject to tight control. This is already the position under the current service discipline Acts and we believe that it works well in practice.
	I hope that with these reassurances the noble Lord feels able not to press his amendments.
	Amendments Nos. 83, 85 and 86 together relate to age. They amendments would raise the relevant age limit in each clause from 17 to 18. Clause 106 sets out the conditions which a judge advocate must have regard to when he is considering whether to authorise post-charge custody. One condition is that the judge advocate is satisfied that the accused should be kept in service custody for his own protection or, if he is aged under 17, for his own welfare or in his own interests.
	Clause 107 sets out what other factors a judge advocate should consider when releasing an accused person from custody. Subsection (3) permits the judge advocate to require the accused to comply with certain requirements. These are generally the same as those which apply in civilian proceedings. Among them, at Subsection 3(d) is that a person who is under 17 may be subjected to certain requirements by a judge advocate on or after release if the judge advocate considers it necessary for the welfare of the accused or in his interests.
	Clause 110 deals with the situations, post-charge, or post-conviction, when a commanding officer may be permitted to order the arrest of a person who is not in service custody. Subsection (3) permits a commanding officer to order the taking of a person into service custody when certain conditions exist. These conditions are generally the same as those which apply in relation to civilian proceedings, as the noble Lord has guessed. One condition is that a person who is under 17 may be taken into custody for his own welfare or in his own interests.
	We do not think that in any of these three clauses there is a case for the services to have a higher age limit to that which applies in civilian proceedings. The effect in each case would be to make an accused more susceptible to custody than would be the case if they were to appear before a civilian court, notwithstanding the wide range of appropriate steps short of custody which are also available to the chain of command. For these reasons I ask noble Lords not to press their amendments.
	I will finally deal with the second aspect of these amendments, which is in relation to Clause 106 only—Amendment No. 84. This clause sets out the conditions a judge advocate must consider when determining whether to authorise keeping an accused in custody under Clause 105. Conditions A to D are generally the same as those which apply in relation to civilian proceedings. Among them, condition B is that a person who is under 17 may be kept in service custody for his own welfare or in his own interests.
	The purpose of Amendment No. 84 appears to be clarification. Although noble Lords are of course right to point out that condition D applies only in the circumstances set out in Clause 109, that is already the effect of Clauses 106 to 109 when read together. The amendment would not change the substantive position and the clause as drafted is, I believe, sufficiently clear. I would therefore ask that the amendment be withdrawn.

Lord Garden: I am grateful to the Minister for going through all those amendments. I apologise for not having spoken to Amendment No. 84, but he described the rationale for it—to clarify the situation—probably better than I could have done. We were trying to be helpful with the two amendments which act as clarification without changing the meaning. If the Government want to stay with their own language, however, we will not fight that terribly hard.
	On Amendment No. 78, I shall look at the Minister's remarks in Hansard, because I could not work out what the maximum time was if special circumstances pertained. If he tells me that it is sufficiently constrained—I am sure that it is—we can look and see how it is constrained and decide how we come back on that.

Lord Drayson: I shall try to be helpful to the noble Lord. The maximum time that an accused may be kept in custody under these provisions is 96 hours. The commanding officer can authorise up to 48 hours and thereafter he must apply to a judge advocate, who can then authorise continued detention up to a maximum of 96 hours.

Lord Garden: I am grateful for that. So the time limits are all covered, which is what I wanted to know, and I am more than happy with that.
	On Amendment No. 82, I remain surprised that the word approximate is used, but if that is how legislation is done, so be it. On the question of the cut-off for 17 or 18 year-olds, I am afraid that I remain concerned that the Ministry of Defence does not seem to have taken to heart the recommendations of the Blake review into Deepcut. Military life is not the same as civilian life; there is a special duty of care in the military to those who are under 18. I shall come back to it under later amendments in the Bill, in a more serious way. But I shall read what the Minister has said in Hansard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 77 not moved.]
	Clause 91 agreed to.
	Clauses 92 to 99 agreed to.
	Clause 100 [Review of custody by commanding officer]:
	[Amendment No. 78 not moved.]
	Clause 100 agreed to.
	Clause 101 [Extension by judge advocate of custody without charge]:
	[Amendments Nos. 79 to 81 not moved.]
	Clause 101 agreed to.
	Clauses 101 to 103 agreed to.
	Clause 104 [Custody without charge: supplementary]:
	[Amendment No. 82 not moved.]
	Clause 104 agreed to.
	Clause 105 agreed to.
	Clause 106 [Conditions A to D]:
	[Amendments Nos. 83 and 84 not moved.]
	Clause 106 agreed to.
	Clause 107 [Release from custody after charge]:
	[Amendment No. 85 not moved.]
	Clause 107 agreed to.
	Clauses 108 and 109 agreed to.
	Clause 110 [Arrest after charge or during proceedings by order of commanding officer]:
	[Amendment No. 86 not moved.]
	Clause 110 agreed to.
	Clauses 111 to 113 agreed to.
	Schedule 2 ["Schedule 2 offences"]:

Lord Drayson: moved Amendments Nos. 87 and 88:
	Page 193, line 22, leave out "or (2)"
	Page 193, line 23, leave out from "section" to end of line 24 and insert "33(1) (dangerous flying etc)."
	On Question, amendments agreed to.
	Schedule 2, as amended, agreed to.
	Clauses 114 and 115 agreed to.

Lord Astor of Hever: moved Amendment No. 89:
	After Clause 115, insert the following new clause-
	"Duty of service policeman during investigation
	INVESTIGATING SERVICE POLICEMAN TO INFORM COMMANDING OFFICER OF PROGRESS OF INVESTIGATION
	The member of the service police force who is appointed to lead the investigation into an allegation that a service offence has been committed shall keep the commanding officer of the unit or formation of which the person (or persons) against whom the allegation is made is a member closely, promptly and regularly informed of the progress of the investigation."

Lord Astor of Hever: On behalf of the noble and gallant Lord, Lord Bramall, I wish to move Amendment No. 89 and speak to Amendment No. 90. The Government have largely addressed our Amendment No. 89 with their amendment on the vital issue of the service police keeping the CO informed of the progress of an investigation. I thank the Minister for the work he has done behind the scenes to facilitate that. Accordingly, I shall withdraw this amendment. I am also minded to withdraw Amendment No. 90 if I receive a clear, unequivocal commitment from the Minister at the Dispatch Box that the issue of our Amendment No. 90, the power of COs to be able to make representations, will be very clearly addressed in regulations. I beg to move.

Lord Ramsbotham: When we discussed this whole issue with the Minister—the noble Lord, Lord Astor, has mentioned that—reference was continually made to the need to keep the commanding officer informed throughout the process. I note that AmendmentNo. 89 says that the commanding officer is,
	"promptly and regularly informed of the progress of the investigation".
	But I note that the word "regularly" is not mentioned in government Amendment No. 90A, which uses the term,
	"as soon as reasonably practicable".
	I do not know whether it is constitutional to ask that the word "regularly" be inserted after the words,
	"as soon as reasonably practicable",
	to make certain that the commanding officer is kept informed throughout the process and not merely once the matter has been referred. This is a matter of considerable importance, certainly to commanding officers.

Lord Drayson: I am grateful to the noble Lord. I do not think that there is any disagreement between us on the central importance of this matter. The commanding officer must be kept regularly informed of service police investigations of his personnel. I am happy to give the commitment for which the noble Lord asked—that the powers of commanding officers will be clearly addressed in regulations. I gave a commitment at yesterday's briefing to provide the earliest possible sight of the regulations as they are drafted. These matters of central importance will be first on the list of the regulations and we will discuss them at the earliest opportunity.
	As the noble Lord has said, I have listened carefully to the general concerns about this area. They are important and genuine, and government Amendment No. 90A is designed to address them. I hope that I have provided the reassurance for which the noble Lord asked. I emphasise the importance of regular communication. I will consider whether it would be appropriate to take the matter further and come back to him.

Lord Garden: Having given general support to the amendments, these Benches are pleased to see that the government amendment covers what is required. However, it would be worthwhile considering the points that the noble Lord, Lord Ramsbotham, has made on ensuring that there is regularity in this matter. We certainly support Amendment No. 90A.

Lord Ramsbotham: I am grateful to the Minister for the guarantee.

Lord Astor of Hever: I am grateful to the Minister for his undertaking and for his assurance that we will have the earliest possible sight of the regulations. As he knows, we take this matter very seriously. I am grateful for all the work that he has done behind the scenes. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 116 [Referral of case following investigation by service or civilian police]:
	[Amendment No. 90 not moved.]
	Clause 116 agreed to.
	Clause 117 agreed to.

Lord Drayson: moved Amendment No. 90A:
	After Clause 117, insert the following new clause-
	"DUTY OF SERVICE POLICEMAN TO NOTIFY CO OF REFERRAL TO DSP
	(1) This section applies where a service policeman considers that there is sufficient evidence to charge a person ("A") with a service offence and refers the case under section 116(2) to the Director of Service Prosecutions.
	(2) The service policeman must as soon as reasonably practicable after referring the case-
	(a) notify A's commanding officer of the referral; and (b) provide prescribed documents to A's commanding officer.
	(3) A notification under subsection (2)(a) must specify-
	(a) the service offence the service policeman considers there is sufficient evidence to charge A with; and (b) where that offence is not a Schedule 2 offence, the circumstances he is aware of that are of a description prescribed as mentioned in section 116(2)(b).
	(4) In this section-
	(a) any reference to there being sufficient evidence to charge a person with a service offence is to be read in accordance with section 116(5); (b) "prescribed documents" means documents prescribed for the purposes of subsection (2)(b) by regulations under section 127.
	(5) Section 117(3)(a) (certain cases to be treated as referred under section 116(2)) does not apply for the purposes of this section."
	On Question, amendment agreed to.

Lord Campbell of Alloway: moved AmendmentNo. 91:
	Before Clause 118, insert the following new clause-
	"MODE OF TRIAL
	(1) The Attorney General may apply to the High Court for a trial in a civilian court of a person subject to service law on a charge of-
	(a) murder, (b) manslaughter, (c) an offence under the Geneva Conventions Act 1957(c. 52), alleged to have been committed by that person when on active service in operational circumstances and which otherwise could be tried by the Court Martial.
	(2) In making an application under subsection (1) the Attorney General must set out the grounds on which the application is being made, and shall provide the person in respect of whom the application is being made with reasonable notice to enable that person to object to the application.
	(3) When an application is made under subsection (1) the High Court may-
	(a) grant the application, but only if it is satisfied that- (i) it would be in the public interest to do so, and (ii) there is a realistic prospect that a jury duly directed could properly deliver a guilty verdict, (b) adjourn the hearing until it is satisfied that the conditions in paragraph (a)(i) and (ii) are satisfied, and in so doing it may give such directions as it deems appropriate, or (c) reject the application.
	(4) The Attorney General may only institute proceedings in a civilian court against a person subject to service law on a charge under subsection (1)(a) to (c) which otherwise could be tried by the Court Martial if he has made an application to the High Court which has been granted in accordance with subsections (1) to (3).
	(5) The Director of Service Prosecutions may not bring a charge for trial in a civilian court of a person subject to service law of an offence other than those in subsection (1)(a) to (c) unless the person has been given an opportunity to make representations to the Director in accordance with regulations made by the Secretary of State."

Lord Campbell of Alloway: This is a probing amendment. I speak also to Amendment No. 208, which is consequential. I am very grateful to the noble Lord, Lord Drayson, who took a lot of trouble and laid on an informal meeting to try to resolve a little local difficulty that arose on Second Reading. I am also grateful for his letter, a long exposition that I received only this morning. Fortunately, by chance I met the noble and learned Lord, Lord Goldsmith, in the Guards Chapel and we agreed that he was the gatekeeper to the citadel, as it were, and would speak to the matter tonight. I am grateful to the noble and learned Lord for that.
	I say at the outset that it is accepted that the Trooper Williams fiasco cannot be repeated, as this Bill removes the power of a commanding officer to dismiss a charge without any form of hearing and before consideration of the SPA. Further, an amendment has been tabled to provide that the senior service police shall inform the commanding officer when a serious case is referred to the Director of Service Prosecutions. It is also accepted that only in exceptional circumstances will cases be heard in the civil jurisdiction. So we have made a lot of progress under the construction of the Bill. But the process under which resort to the civil jurisdiction is sought and granted by the Attorney-General by ordinance ex cathedra in the exercise of absolute discretion without notice, means of objection or reasons, which may not be challenged in any court of law, remains in the Bill. There was some discussion about that on Second Reading but, as I see it, and as I think the noble and learned Lord, Lord Goldsmith, sees it, it is in the Bill. It is not removed. It may be qualified only by statute as proposed by this amendment. The object of the amendment is to seek to ensure that this administrative decision is exercised fairly according to the tenets of natural justice within the law, in the interests of the service and to alleviate the concern of noble and gallant Lords. Their main concern is with the cases of murder, manslaughter and breach of international convention—which is of particular importance to the noble and gallant Lord, Lord Boyce, who spoke about it. The concern is as to the deprivation of the legitimate expectation of trial by court martial—of which there was some discussion previously today—and to its the effect on the integrity and authority of the chain of command and on morale and discipline.
	This amendment is a measure of safeguard and would wholly alleviate that concern. The High Court would decide whether there was a realistic prospect of conviction and whether it was in the public interest that the trial should take place under the civil jurisdiction. The noble and gallant Lord, Lord Bramall, made it plain to me that this safeguard of the High Court would remove and wholly alleviate any concern of noble and gallant Lords. The opinion of the Crown Prosecution Service, if sought, would no longer be relied upon, and the rules of procedure of the High Court would apply as to any other application for leave. In all other cases the rules of procedure under the Bill would provide for notice of the substance of the grounds on which the decision to ordain trial under the civil jurisdiction was made and would afford means of objection. That is in accordance with the fundamental concept of natural justice and is as referred to by the noble and learned Lord, Lord Mackay of Clashfern, on a previous occasion.
	I do not want to take up much time. It is accepted that it is not the purpose or the province of the judiciary to decide whether a person should be prosecuted unless there is an abuse of process. The question arising here is not whether the serviceman should be prosecuted, but under which jurisdiction and whether it should be under the civil jurisdiction or by court martial. The application of the Attorney-General to the High Court for leave to proceed under the civil jurisdiction is not to seek a prosecution. The Attorney-General is answerable to Parliament for the conduct of his functions, but as yet he is not, and perhaps never will be, answerable to the court of law for compliance with the law in the discharge of his functions in accordance with natural justice. It may be that some undertaking could be given to Parliament.
	What should be done? That is a matter for your Lordships. What is the view of my noble and learned friends and other noble and learned Lords who have served as Attorney-General? What should be the response of the noble and learned Lord, Lord Goldsmith? I think I know the response of my noble friend Lord Kingsland; he is not madly enthusiastic about this exercise, putting it mildly. But it is not a matter for any one person; it is a matter for the consideration of the Committee. I am not seeking it today; and unless I have a measure of some support I may well not seek it again. I beg to move.

Lord Mayhew of Twysden: My noble friend beside me has rendered the Committee a signal service in the tenacity and perspicacity with which he has ventilated a matter of considerable anxiety. I do not think that it can really be doubted that in the notorious case concerning Trooper Williams, the Attorney-General's decision to refer the case to a civilian court caused great surprise. It had not been widely recognised that such a discretion of the Attorney-General existed, and had existed for a considerable time, particularly after a commanding officer had, by virtue of his own decision dismissing a charge, effectively blocked any further proceedings against the defendant on the same charge in the military system. So there was a great deal of surprise.
	It also attracted much criticism partly because, for Trooper Williams, the decision came out of the blue. He had been, as it were, in lay terms acquitted by the commanding officer, and he thought that that was that. It came out of the blue partly because there was no warning and no opportunity for him to make representations to any authority—the Attorney-General or anyone else—and partly because it was thought that there really ought not in fairness be a second bite of the cherry for the prosecution after the commanding officer had dismissed the charge of murder on military legal advice—advice which, incidentally, was later shown to be sound. So it has been a pretty controversial case, and rightly so, ever since. I agree with Ministers and others with military experience that the effective blocking by a commanding officer of any further proceedings in the military system cannot really be justified. The removal of that possibility is achieved by the Bill. Obviously, there are considerations of conflict of interest that arise in a way that could not really justify the continuance of that arrangement.
	My noble friend's amendment raises the interesting and important question of whether the Attorney-General should continue to have sole and unqualified discretion to order that there should be processed in the civilian system and not the military system any charge against a service person of murder, manslaughter or breach of the Geneva Convention. That is a very important issue. I am afraid, and my noble friend knows this, that I cannot go along with him on the proposition that the Attorney-General must first obtain the leave of the High Court, on the terms proposed in the new clause or indeed on any terms. My reason is this. The Attorney-General is the guardian of the public interest under our constitutional arrangements, and in my view much depends on no inroads being made into that doctrine and practice. It may not look as though it can work well, but it does work, has worked and will continue to work well; and I, for my part, do not think that it ought to be disturbed. I can see faces all around me who I suspect are concealing thoughts that go along the lines of, "Well, he would say that, wouldn't he? He has been one". But I do believe that that proposition stands up to the test of practical efficiency and serviceability.
	There is another difficulty in that the issue that would have to be put to the High Court might properly and probably not entertain a judge. He probably would say, "This is not justiciable in a court of law; it should be a matter for the discretion of the Attorney-General, who is, rightly, responsible to Parliament".
	But that is not the end of the matter, because my noble friend has done an important service—he has highlighted the unsatisfactory character of a power to direct a civilian trial without affording to the accused any opportunity to make representations on the matter. A serviceman or servicewoman is in a unique position—we are talking about offences that can be tried only by court martial and for which the accused may well have a legitimate expectation that he will be tried by court martial.
	I paid attention in our earlier debates in particular to what was said more than once by the noble Lord, Lord Drayson, about the importance in the eyes of the Government of sustaining a separate and comprehensive system of military justice. All of us understand why that is important. Therefore, it may well be envisaged that an accused may have a "legitimate expectation"—in the language of the law—that he will be tried within that system. Certainly, he may have a proper desire to be tried by court martial and that should be respected, even if the Attorney-General ultimately decides within his constitutional discretion that that desire cannot be met.
	The way to achieve that is, surely, to require the Attorney, if he is minded to go for a civilian process, to give notice to the servicemen and to tell him that he can make representations on the matter if he so wishes. That is a lacuna in terms of fairness and it can be filled. If my noble friend's scheme were modified to achieve just that, but no more, I would support it—and I hope that Ministers would do so.

Lord Thomas of Gresford: Perhaps I may raise with the noble and learned Lord the Attorney-General the much-related point regarding the additional jurisdiction of the court martial to hear and determine cases involving murder, manslaughter, rape and treason that are committed in this country. As the noble and learned Lord will know, and as we were told in our earlier debates, since the 16th and 17th centuries, those offences could be heard only in the civil courts. This Bill provides for a dramatic extension of jurisdiction to enable courts martial to deal with such cases, even if the offences are committed in this country.
	Who will decide whether the trial is civil or for a court martial? If a serious offence happens overseas, there are arrangements between the local jurisdiction and British forces as to which should have precedence. In this country, where there is dual jurisdiction for matters other than the serious offences to which I referred, the Queen's Regulations set out various ways in which the choice can be made. It is usually made by the chief officer of police for the district within which the offence was committed and that is a matter of liaison between him and the commanding officer.
	What happens now? Will the Attorney-General himself determine whether there should be a trial by court martial for a murder committed in this country, or should it be decided by the Crown Court, or will someone else decide this issue? Will it be the Director of Service Prosecutions or the Director of Public Prosecutions? The mechanism by which that choice will be made is not spelt out in the Bill and that question is very much related to the matter raised by the noble Lord, Lord Campbell of Alloway. I hope that he forgives me for speaking to his amendment in this way.

Lord Kingsland: I have been named by my noble friend Lord Campbell of Alloway as one Member of your Lordships' House who will not support the amendment. I freely admit that that is the case. It is not that I in any way decry the ingenuity that lies behind the drafting. It is a characteristically ingenious amendment and there are circumstances in which it would be welcome; but I am opposed to it for a number of reasons.
	The first of those is that given by my noble and learned friend Lord Mayhew of Twysden. The constitutional position is that the Attorney-General is accountable to Parliament, not for the substance of his decisions, but for the way in which he makes his decisions, for his independence and for the probity that he brings to bear on his decisions. He is not accountable for the decision itself. That is a responsibility that our constitution gives to him alone. It is not right that even a towering figure in our nation such as the Lord Chief Justice or another senior judge should be in a position to second guess that decision.
	The noble and learned Lord, Lord Mayhew, raised a related issue: what about the legitimate expectation of the serviceman himself? If such a serviceman had sat in the Gallery this afternoon, he would have heard the Minister underpin the Government's approach to the Bill as one that integrated service disciplinarylaw with criminal law. It provides, as the noble Lord, Lord Drayson, said on a number of occasions, a comprehensive legal system. It must follow, as my noble and learned friend said, that a serviceman would have an expectation that if it were alleged that he had committed an offence, he would be tried within the military system; and that if a different decision were made, he should be allowed to have a view about that and to be able to express it. There is something to be said about having that position reflected in the Bill; but, with great respect, it should not be reflected in the way that my noble friend Lord Campbell of Alloway sought. The serviceman should be able to make representations, perhaps to the Attorney-General himself.
	The other reason why I am not inclined to support my noble friend's amendment is that it is unnecessary. At Second Reading, the Minister made it crystal clear that, in future, all servicemen who are engaged in operations in circumstances where there is a question over the legality of their behaviour would be prosecuted by the new services prosecutor and that all such prosecutions would be heard by a court martial. The Minister made that statement unequivocally. It follows that the problem raised by the noble Lord, Lord Campbell of Alloway, would not arise.
	I am confident that the position is now clear and that the logic of the Bill flows from that position. The Bill clearly provides a comprehensive system for criminal law in relation to servicemen. If that is so, we will have a watertight system whereby criminal proceedings would end up in a court martial. We do not need a mechanism to deal with the transfer of cases from the military system to the civilian system, because that is not the Government's intention.

Lord Goldsmith: I thought it right to speak to this amendment myself because it relates to my role, it arises out of the Trooper Williams case and I believe that, by doing so, I would respond to the wishes of the Committee. I made that decision before fortuitously meeting the noble Lord recently and telling him that. Therefore, I am grateful to my noble friend Lord Drayson, who has charge of the Bill in this House, for giving way to me on this amendment. I do not need to say anything about Amendment No. 208, which is entirely consequential. I may touch briefly on Clause 126, which is in this grouping, but I do not know whether the noble Earl, Lord Attlee, is intending to oppose the Question whether the clause shall stand part. He shakes his head, so perhaps I shall explain it briefly and say no more.
	Like the noble and learned Lord, Lord Mayhew of Twysden, I acknowledge with admiration the clarity and energy with which the noble Lord, Lord Campbell of Alloway, has pursued his concern in previous debates and today. I suggest, and shall be suggesting to him, that by doing so he has achieved the essence of what he wanted to do—not perhaps by the route he now suggests, but he has achieved it in substance. His concern and that of other noble Lords arose out of the Trooper Williams case. I do not propose to rehearse the facts again. I am a little tempted to do so by one or two remarks with which I do not agree, but I am going to issue a very firm ordinance of self-denial. We have rehearsed the issue in this House fully. There are some differences of opinion, but what matters now is the future and not the past.
	The noble Lord, Lord Campbell of Alloway, has rightly acknowledged that the particular circumstances that gave rise to the Trooper Williams case will not arise again because of the provision in the Bill, if passed, under which a commanding officer will not be able to stop the service prosecuting authority ever considering whether a case should be proceeded with in the military system. That is what happened. The only way that a case could then be considered by a prosecutor was in the civilian system, and that is what took place. The Bill will remove the power of the commanding officer to dismiss a charge in those circumstances.
	As the noble Lord, Lord Campbell of Alloway, said, there are further changes which are highly relevant. When the Director of Service Prosecutions considers a case and decides not to proceed with it—this is under Clause 126—he will have the power to give a direction which would, in effect, bar any further service or civilian prosecution for the same offence.
	In addition, where the service police investigate allegations of serious offences and decide that there is sufficient evidence to charge, they will have to refer the case to the Director of Service Prosecutions. As an amendment tabled by the Government makes clear, the service police must, as soon as reasonably practicable, notify the commanding officer of such a referral. It is the intention to provide in regulations made under the Bill rules that enable the commanding officer to put any relevant factors before the service police and the Director of Service Prosecutions before the service police refer the case to the director and before the director decides whether to charge.
	I believe that those amendments as a package meet the concerns highlighted by the noble Lord, Lord Campbell, and by other noble and noble and gallant Lords. Therefore, I venture to suggest that his concerns have been listened to and have substantially been addressed.
	I have to say to the noble Lord, Lord Kingsland, that I do not deal with this amendment on the basis that he has put forward—that is, that the possibility of a case being in the civilian system will not arise again. That simply is not right. As the noble Lord, Lord Thomas of Gresford, noted and as I have said before, it is a commonplace that in cases which arise out of conduct in this country, there are prosecutions in the civilian court. So far as concerns action overseas, active service and operational circumstances, I have said—it has been said by others—that I envisage that a civilian prosecution will take place only in exceptional circumstances. I have not said, and I do not believe that the noble Lord believes that he said either, that such a case will never be brought within the civilian system.
	I believe that the amendment is unnecessary because we have met the concerns. I want to come back to one point but not for the reasons given by the noble Lord, Lord Kingsland. It would not be right for me, standing on my feet as the authority ultimately responsible for making certain decisions, to stand by silently and accede by silence to what the noble Lord, Lord Kingsland, said.

Lord Kingsland: That was not my understanding of what the Minister indicated at Second Reading, and perhaps between now and Report we can look again at what was said on that occasion. If I have misunderstood it, then plainly what I said in my first intervention needs to be revised.
	The noble and learned Lord the Attorney-General raises an important point. This afternoon we have heard consistently from the Government that the whole purpose of the Bill is to provide a completely comprehensive system for the Armed Forces. The noble and learned Lord is looking extremely impatient—

Lord Goldsmith: I am not looking the slightest bit impatient. I am anxious to hear what the noble Lord says and am waiting patiently to hear it all.

Lord Kingsland: I am most grateful. This afternoon, the Minister has been at pains to emphasise—particularly in the context of the attempt by the noble Lord, Lord Thomas of Gresford, to remove Clauses 42 to 49 from the Bill—that the intention is to provide a completely comprehensive, self-contained system.
	The noble and learned Lord the Attorney-General was suggesting that there might be circumstances where this watertight approach is not as watertight as we all thought. The fundamental issue here is whether that means that the noble and learned Lord the Attorney-General believes that he has the constitutional power to remove a case from the military procedure at some stage after it has started and switch it to the civilian procedure. I entirely accept that extra-territorial offences such as murder and manslaughter could be started in the civilian courts. That is plain. But the situation which has concerned me, and which I thought the noble Lord, Lord Drayson, had covered at Second Reading, is one where proceedings are begun by the Director of Service Prosecutions and are then taken out of the services loop by, I suppose, the DPP under the superintendence of the Attorney-General and switched into the civilian loop. I do not believe that the noble and learned Lord the Attorney-General has the constitutional power to do that, and I want to be reassured that it is not his intention in future to so act.

Lord Campbell of Alloway: Perhaps I may intervene because I am involved in this. First, my noble friend Lord Kingsland got it totally wrong. He knows why I think he is wrong and I shall tell the Committee in a moment. The noble and learned Lord, Lord Goldsmith, has got it totally right. It was an outrage to be told that this was wholly unnecessary. It was not wholly unnecessary. Something has come of it and we have gone some way.
	I want to add one point. My noble friend Lord Kingsland asked two leading questions of the noble Lord, Lord Drayson. They were loaded. You could see that they were loaded with the art of a really fine practitioner—my noble friend is expert at it. The Minister fell into the trap and answered "yes" to them both. So then my noble friend Lord Kingsland turned round to me and said, "Well, there it is. There is no object; this is just a nonsense". I just smiled because I thought, "What else can you do?". That is my side of it and I am very pleased to have been vindicated publicly.

Lord Goldsmith: I do like this place.
	I think that I have been quite clear with the noble Lord, Lord Kingsland, on what I believe is the position. I shall say one more thing. The decision on whether prosecutions take place is not a matter for the Government. Ultimately it is a decision for the Attorney-General as the senior civilian authority. If the noble Lord, Lord Kingsland, of whose forensics I am very well aware, has somehow trapped my noble friend, that will not prevent the responsibilities that I have constitutionally being exercised. I am going to move on.
	Why do I not accept the route that the noble Lord, Lord Campbell, has proposed? It is for the reasons given by the noble and learned Lord, Lord Mayhew, and the first reason but not the second reason given by the noble Lord, Lord Kingsland. The background is that there are many hundreds of cases each year in which the UK military and civilian police prosecuting authorities decide whether offences committed by UK servicemen in this country should be tried in military or civilian courts. In those cases, as the noble Lord, Lord Thomas, said, they decide without any apparent difficulty guidance set out in Queen's regulations. The noble Lord, Lord Thomas, asked whose decision was final. I believe that that was clearly stated by my noble friend Lord Drayson when he correctly stated on Amendment No. 59A that ultimately the civilian authorities have the final say. If there is a disagreement between the prosecuting authorities, ultimately that would mean as the House of Lords has said a decision by the Attorney-General as the senior civilian authority. So, ultimately the matter is for the Attorney-General. So, it is too, in overseas cases where the United Kingdom civilian courts and the courts martial have concurrent jurisdiction. That is—I disagree with the noble Lord, Lord Kingsland, as he knows—under the constitutional responsibility for the enforcement of the law recognised in the case of Bastow by the House of Lords and as part of my superintendence as a prosecuting authority. It is not in the Bill; it is part of our constitutional arrangements.
	Judges have a crucial role in safeguarding against any abuse of the court process. You can make an application for an abuse to stop a case on the grounds of abuse. Equally you can apply to a court which is trying a case to say that there is no evidence to support it and no case to answer. Both of those applications were made to Mrs Justice Hallett. The first problem in the amendment of the noble Lord, Lord Campbell, is that it asks the judge to do what I would respectfully say is making a prosecuting decision. He is asked to consider two questions: is there a realistic prospect of conviction; and is it in the public interest to go to a particular place? That is exactly the decision that the prosecutor has to make. Not only does that undermine the constitutional position of the Attorney-General, as the noble and learned Lord, Lord Mayhew, said, it also undermines the constitutional position of the judges. Some of the cases are set out in a letter sent by the noble Lord, Lord Drayson, to the noble Lord, Lord Campbell.
	I shall read only one reference by Lord Dilhorne, a very distinguished judge and former Law Officer and Lord Chancellor, who said:
	"A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval".
	What would happen if a serviceman was being prosecuted in the civilian court because a judge said it was right to do so? Is there not a risk that the jury will think, "Well the judge thinks this is a good case". Would not the serviceman in those circumstances think that he was at risk of not getting a fair trial? So I have that objection as well.
	I come to the one point where I recognise the point made by the noble Lord, Lord Campbell, and others. Looking at the future, does it make sense that in circumstances where a serviceman may be prosecuted in a civilian court and might expect if he is to be prosecuted that it will only be at court martial, he should have some notice of that and an opportunity to make some representations? I see the force of that. I would not want to take it too far for several reasons. I would not want to see great delay, formality or satellite litigation because delay of that sort only delays it from the point of view of the serviceman. Sometimes one would not know who all the potential servicemen are. It happens sometimes that there is a case that once it starts to be investigated by the civilian or military authorities, other soldiers or servicemen come into the picture. I would not want to stop and start, but I am happy to assure the House that if cases in the future are brought to me in the circumstances referred to in the noble Lord's amendment—active service operational circumstances overseas and the possibility of a civilian proceeding—I will seek to ensure that the views of the serviceman or servicemen who are known at that stage as defendants are made known to me. They will have the opportunity of making written representations as to the venue. I do not expect it to take long. I do not expect it to result in complicated legal proceedings. But I hope that the noble Lord will see that by that assurance I have given to this House, it meets the final part of what the noble Lord has been seeking to obtain.
	The noble Lord tabled this probing amendment to obtain assurances for the future. I hope that he will take the view that he has succeeded substantially, though not perhaps by the route that he had in mind, and that he will be able to withdraw the amendment happily.

Lord Thomas of Gresford: Will the noble and learned Lord confirm that that applies in a different circumstance? Let us suppose that the civil authorities, who the noble and learned Lord said will take the initial decision, decide that it should be a court martial, will the potential defendant have the opportunity of making representations to the Attorney-General that it should be a civil trial?

Lord Goldsmith: I did not have that in mind. The noble Lord's example is slightly odd because he says if the civilian authorities decide it should be a court martial. Did I misunderstand his question?

Lord Thomas of Gresford: I understood the noble and learned Lord to say that under the present arrangements where there is dual jurisdiction it is left to the chief of police to decide whether to takethe matter on a civil basis or whether to refer it to the military authorities for a court martial. Those are the circumstances that I am thinking about. Let us suppose that the chief of police says, "This murder charge, although it was committed in the United Kingdom, involves a victim who was a serviceman and therefore it should be by court martial". Will the potential defendant have the opportunity of making representations to the Attorney-General that it should be a civil trial?

Lord Goldsmith: I was not dealing with that with that case at all and I am not giving any assurances about that. We have well worked-out arrangements where events take place in this country through Queen's regulations and through arrangements between police and military authorities. I was dealing with the case raised by the noble Lord, Lord Campbell, about a person who is on active service in operational circumstances overseas where there is concurrent jurisdiction. In those circumstances, I understand that he says that he would expect to be dealt with in a military proceeding in a military procedure. I am saying that if a question arises that it should be civilian, within the limits I have identified, I will seek to ensure that he has an opportunity to make written representations as to venue before a decision is made to take it to the civilian process.

Lord Craig of Radley: Before the Minster sits down, he mentioned Clause 126, which is headed:
	"Directions by the DSP barring further proceedings".
	Given the Attorney-General's superintendence responsibilities, is there a possibility that an Attorney-General could overturn that decision by the director of service prosecutions to bar further proceedings?

Lord Goldsmith: As I understand the way in which the Bill operates, if a director makes such a direction, it has the effect set out in the Bill. Therefore, if he has made the direction it would have the effect of—I am afraid I cannot remember the relevant clause. The effect is that it counts as an acquittal and the usual rules—

Earl Attlee: Clause 63.

Lord Goldsmith: I am obliged to the noble Earl. It counts as an acquittal and the rules for what we call "autre fois acquit" would apply. Having said that, I do not rule out that the director of service prosecutions might consult the Attorney-General of the day as to whether he should make the direction. As long as that is clear, I can answer the question in the way that I have done.

Lord Campbell of Alloway: I thank the noble and learned Lord the Attorney-General for his assurance. He is right—it gives me the essence of what I am asking. I hope it alleviates the concern of noble Lords. I dissociate myself from the extension of the undertaking sought by the noble Lord, Lord Thomas of Gresford. That is not what I am seeking.
	The whole object of this having been achieved with a reasonable sense of amity, I certainly shall not come back to retable this, and I shall not be having any further discussions with my noble friend Lord Kingsland about it. I hope, however, to have some discussions with the noble and learned Lord the Attorney-General and the noble Lord, Lord Drayson, if there is a way that one can help. I am very grateful to them both. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clauses 118 to 121 agreed to.

Baroness Crawley: I beg to move that the House be resumed, and, in doing so, I suggest that the Committee begin again not before 8.52 pm.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Housing: Home Information Packs

Baroness Hanham: rose to ask Her Majesty's Government what is now their policy on home information packs.
	My Lords, my original intention was to have the home information pack regulations brought to the House to pray against them. Owing to the difficulties in finding a suitable date for a debate before the Recess, it was postponed until today. However, noble Lords will remember that shortly before the House rose for the Summer Recess—on 18 July, to be exact—the new Secretary of State for Communities and Local Government suddenly announced that the mandatory provision of the main component of home information packs, the home condition report, was to be abandoned in favour of the report being produced on a voluntary basis, if the seller wished. Since that seemed to raise the question of the viability of the regulations themselves, rather than praying against the remaining aspects I decided to turn the prayer into a Question, which I ask today.
	I will not weary your Lordships with a rehearsal of all the concerns raised in this House and the other place by me and my colleagues about the validity of the rationale for HIPs. The rationale was that, by arming buyers from the outset with information on properties in which they were interested, the packs would prevent sales from falling through and save millions of pounds from being wasted. Concerns were raised about the packs' shelf life. There were also concerns about the mandatory requirement for a home condition report to be included in a mandatory pack, which had to be available before a seller was even able to put their house on the market. There were great doubts, still not resolved, as to whether a home condition report would satisfy the requirements of the mortgage companies in terms of a survey adequate for their purposes, and as to whether the home condition report surveys would be of sufficient detail to satisfy the requirements of a buyer. There was a concern that the whole thing would be a complete waste of time in view of the imminent arrival of e-conveyancing.
	I will briefly draw attention to the aspects that have brought this pack of cards tumbling down, both of which were foreseen and debated ad nauseam but comprehensively rejected by the Government as an unnecessary intrusion into their unfettered belief in the viability of the packs: the number of home inspectors who were in training and would have been ready for implementation day, and the preparedness of the home-sellers industry to undertake this wholesale change. Time after time, the Government were questioned—and I am delighted to see the noble Lord, Lord Rooker, in his place, because we debated this together on numerous occasions—on the number of inspectors in training. The answers were always reassuring: there would be more than sufficient to undertake the work when D-day came. That fig leaf was finally blown aside in the Secretary of State's admission in July that there were not going to be anything like enough inspectors trained or in training to entertain a compulsory introduction of home condition reports for all sales. In fact, we understand that of the 7,000 required, fewer than 250 had been trained, at a cost for each one of about £7,000. That made implementation impossible.
	Another aspect was that the Government had agreed, under pressure during the passage of the legislation, to undertake a pilot—or, as it was termed, a dry run—of the packs prior to their implementation. That has barely begun. We understand that six area trials are due to be undertaken shortly, supported by £4 million of government funding and under the aegis of the Association of Home Information Pack Providers. The test will include the trialling of packs funded in different ways: fully funded, paid for by the Government; the home condition report element funded by the purchaser and the remainder by the Government; and the Government picking up the bill if the sale falls through and the consumer pays the full cost. It does not take the genius of Einstein to see that the only test will be of the fully funded packs.
	How are these trials to be monitored and reported? Prior to these dry runs, the Government sought to obtain a benchmark of the current selling processes for comparative purposes by seeking information from estate agents, solicitors, buyers and sellers by means of a baseline study that was to take place between 15 May and 9 June 2006. Was that baseline study completed? How many responses were received from the three-week survey? What use was the study going to be put to? In her statement on 18 July, the Secretary of State also referred to the fact that over 14,000 home information packs with searches had been successfully tested, but that only 250 of these had been produced with "some sort of survey". Those 250 were to be analysed over the summer. What is the result of that analysis?
	While there has been a complete volte-face on the home conditions report, the requirement for an enemy—I apologise; maybe it is indeed an enemy, but I meant "energy"—an energy performance certificate has suddenly become the Holy Grail of the home packs. These certificates are to be mandatory and will contain information and gradings on the efficiency of heating and hot water systems and the insulation of properties. However, they will also require technically trained inspectors. How many of these are in training, and will they require different qualifications and competencies from those of the home inspectors that are currently in such short supply? How does the Minister believe—if she does at all—that it will be possible for energy performance certificates to be introduced by June 2007 if specially trained inspectors are required for them but are not even available for home condition reports?
	Does the Minister agree that the only reason why the energy efficiency audit has become so important is to implement the EU directive on energy savings in homes, and that that is already being done perfectly satisfactorily in Northern Ireland, where it is a stand-alone requirement on sale of property? Does she further agree that the European directive talks about a certificate having to be made available on the sale or letting of a property? If so, why are the Government insisting that that is a condition of first marketing a property? The reservations about and opposition to home information packs have been demonstrated to be well judged. Our view, which is supported by many professionals in the industry, is that the Government should do everyone a favour and jettison this whole policy.
	I am sure that the Minister will agree that moving home is one of the most stressful things that anyone can do. These provisions, even if introduced in their mauled form, threaten to make that worse, not better. Rather than protecting the public, they are set to undermine the stability and health of the housing market. Having reached the decision to delay, the Government would be well advised to abandon this whole project. It is plain as a pikestaff that these regulations cannot be allowed to stand. They have been blown apart as a result of the Secretary of State's actions. Will the Minister say when and if they are to be revised and, if they are, can she clearly deal with the question of what the Government's policies are now?

Lord Addington: My Lords, I came to this subject via the indirect route of a member of my family undertaking the training to implement these packs in time to be told that the scheme was not happening. I regarded that as annoying to them—that is an understatement—and as fundamentally unfair to anybody who had undertaken the training. The Government brought in the scheme and then the Government took it away. The cost involved is considerable—more than £8,000—and the course controls your life for a year. I have figures that show that it takes 15 to 20 hours per week of home learning over a year. Vast amounts of effort are required to do that.
	Suddenly, something that you had been working towards that you thought would bring you career advancement was taken away at the drop of hat—at least, that is what it felt like. Then, when the noble Baroness responded to a topical Question—it was the last topical Question we had, so perhaps her reply will be more entrenched today—those people found out that the energy component will remain. The figures that I have on that course is that it costs £3,000—as opposed to £8,000—the maximum total home learning is about 40 hours and it can be done in about three months. I was given those figures by one of the major suppliers. So 15-plus times more work and effort over a year—when your applications for jobs and everything else in your life are being controlled by that intensive training—was taken away.
	I did not get involved in whether the packs were a good idea in the first place. Initially, they seemed attractive to me, and they still do as a concept. As the implementation was this badly done, I suggest that the Government have a duty at least to compensate those people who have done that work. The junior level of training required for the secondary qualification for which you are apparently covered does not compensate for the amount of effort you have put in. A greater number of people can enter the market to get the training quickly and will thus be competing with you. There is no compensation for the amount of time that you have put in.
	No matter what their reasons or how logical they were, the Government must stand up and say, "We got it wrong; we will give you a form of compensation". Initially, I thought that some repayment of the costs would be enough, but the longer this goes on, the more it will rankle. Every time the Government insist on some training to fulfil a government post, I would be looking over my shoulder for a wee bit, especially in this field. Surely there is a duty—indeed, a moral responsibility—on the Government to give some form of compensation. I look forward to the Minister's reply, but the fact that you have a junior qualification from your much more expensive training does not cut the mustard. I look forward to the Government taking some action to give compensation.

Lord Jenkin of Roding: My Lords, when I saw my noble friend's Unstarred Question on the Order Paper, I reflected that this year I have undertaken three transactions: I surrendered a tenancy in Pimlico, I bought a small terraced house in Vauxhall and I sold an old farmhouse in Essex. I therefore examined those transactions to see whether, if these HIP proposals had been in force, there was any prospect that they could have done anything to—I quote from the original news release from the ODPM in 2003—
	"ensure the home buying and selling process becomes more certain, transparent and consumer friendly, whilst reducing stress and the number of failed transactions".
	I entirely agree with what my noble friend said about the stress of moving house; my wife and I are getting on a bit in years and that makes it worse. I have studied the case. I attended a briefing on Monday and have read the 80 pages of the regulations—80 pages, what on earth are people supposed to make of that? I have come to the conclusion that I cannot begin to see how, if the HIP process had been in force for any of the three transactions that I undertook, it could have done anything other than increase the costs and multiply the bureaucracy.
	When I sold my house, my solicitors had no difficulty in getting hold of all the information that they needed, including information about title, so that they could draw up a contract and the conveyance. That included sufficient information to register the land for the first time, as it had not been registered before. When the first purchaser whose offer I had accepted failed to make any progress and I had to put the house on the market again, I asked my solicitor how much that failed transaction would increase his costs. She said that, as she had all the documents and all that she had to do was make other copies and send them off, it would probably cost about another £20. Is that what this massive bureaucracy is supposed to save? I cannot believe that the HIP process—particularly without the house condition survey, which has now been abandoned, as my noble friend said—could conceivably have helped me in any way at all. Apart from one matter—the energy performance certificates, to which I shall return in a moment—I have identified nothing in this process that would have made any of the three transactions anything other than more expensive. I cannot believe that that is what the Government would be happy with.
	The ultimate purchasers quite properly insisted on a fully qualified surveyor to survey my 150 year-old house. It is inconceivable that he could have been satisfied by the sort of house condition survey that the Government originally envisaged. The longest delay in the purchase of my house in Vauxhall was getting information out of the freeholder's agents, and there is nothing in the HIP process that could conceivably have speeded that up. That was the only delay we had.
	Where does that leave us? The energy performance certificate is the only part that is worth having, and I could be persuaded that that would be worth while. I believe that the Government ought to withdraw the rest, start again with their energy performance certificates, and see where they get to.

Lord Graham of Edmonton: My Lords, it is customary to declare interests in debates. My first interest is that many years ago I served as chairman of a housing committee and was the leader of a London borough, and I got a bit closer to the problems of tenancy and tenure. But, unlike the noble Lord, Lord Jenkins, who I envy—and I appreciate the experiences that he shared with the House—in perhaps 50 years I might have moved five times. Each time was stressful and filled with anxieties, which resolved themselves.
	I first came across the possibility of aiding this generality when the idea of a logbook was mooted. That was more than 20 years ago when I was in the other place. So the Government should not be accused of being too quick in trying to produce a solution to a problem. The noble Lord, Lord Jenkins, and the noble Baroness have sought to make it clear that there are no problems to be solved. Now, as far as I am concerned, there are many problems to be solved.
	On Monday night, at the meeting which the noble Lord, Lord Jenkins, attended, I asked where was the—

Lord Jenkin of Roding: My Lords, I am sorry. My name is Jenkin without an "s" and has been so for the past 80 years.

Lord Graham of Edmonton: My Lords, I apologise. I realise that it must be a touchy subject and I will keep off it. On Monday, on the question of where the opposition was coming from, the noble Lord said that people were opposing the Bill on principle. I asked what the principle was. He said that the principle was interference in the free market. I said, "Well, I am supporting it on principle—the principle of interfering in the free market". If by the operation of the free market there are, across the whole field, supporters for this kind of action, I believe that the Government should be commended for at least making the endeavour.
	I hear what the noble Lord, Lord Addington, says: that an aspect of his speech deserves answers and possibly some constructive response from the Minister when she replies. But no scheme with so many vested interests—one of them being the consumer—will ever begin with unanimity. It will evolve. If the Government felt that with the passage of time there would be difficulty in producing a workable and viable scheme for the home reports, they did the right thing in withdrawing them. I am assuming that the Minister will tell us something helpful about the steps taken to try to come around to the original suggestion.
	I have quotes from the Law Society, from estate agents and from the Consumers Association. It says that of the people it surveyed 80 per cent said that they were in favour of the scheme—possibly not the detail, but in favour of the idea that this HIP nexus would be produced.
	Time, as we all know, is the essence of many situations. The process that takes place in this country is far and away longer than it is in other countries. The Government should take courage and persist in their plans, taking careful note of the improvements which might be made, but certainly not abandon them. I wish the Government well in their process.

The Earl of Caithness: My Lords, I declare my interest as a surveyor and as one of those who were conned by the Government into getting trained, only to have the rug pulled from underneath me. I cannot possibly comment on the speech of the noble Lord, Lord Addington, because I might be a beneficiary of it. How we miss the noble Lord, Lord Phillips of Sudbury, on an evening like this.
	As we wade through the mire of the shambles of this legislation, chest waders are still needed, so I have a lot of questions for the Government. Will the Minister confirm that from now on and after June, agents will still be able to offer first-day marketing? In order to allow this, may I suggest that the energy performance certificate, the EPC, which is the only new item in the pack, can be made voluntary at marketing but mandatory before the exchange of contracts? The Government have to bring this provision in; it is European legislation and it was tacked on to the Bill to make their commitment to this satisfactory. That would be one way of making the scheme work.
	Another way to have first-day marketing is to provide a certificate to the trading standards inspectorate, if necessary, that a pack has been commissioned from the pack provider. After all, it is mostly legal documents. So, as an agent, if we get instructions we can ring up and ask the pack provider or the solicitor to provide the document. If they have a certificate and it is on the way, we can start marketing.
	The EPC will require about 1 million extra car journeys a year because it will be necessary before marketing begins. That could be deferred by my suggestion of making the EPC mandatory. It could then be included in the valuation by the purchaser later on in the process. The EPC is valid for 10 years. It is also needed at the change of every tenancy. Which takes precedence? What happens with holiday lets? Are the Government giving us any clear instructions on that? We do not have long to go.
	The dry run is another 180 degree U-turn by the Government and £4 million of taxpayers' money will be spent on it. But some of the home information packs will be subsidised. That is not a dry run; that is not testing the market. It gives a completely false impression. This dry run is already discredited because it will be supervised by the Association of Home Information Pack Providers, which has a vested interest in the process. It is exactly the same mistake that the Government made with the Bristol trial before this legislation started. Maria Coleman had a vested interest in a home information pack business and was trying to pose as an estate agent at the same time.
	Where is the industry now? The RICS has lost credibility on this. The National Association of Estate Agents started off badly but suddenly got it right and has gained in credibility. A new organisation has surprisingly sprung up. It is called SPLINTA—Sellers' Pack Law Is Not The Alternative—ably run by Nick Salmon. It comprises 1,800 firms of surveyors, solicitors and estate agents across the whole breadth of the housing market, covering more than 3,500 offices throughout the country, and it is still growing. Those organisations—the RICS, the NAEA and SPLINTA—want improvements in the housing market. Stop, take a deep breath and come back and talk to us because we want to move just as much as the Minister, but this time let us go in harmony rather than in disharmony.

Viscount Eccles: My Lords, last June the Home Information Pack Regulations were reviewed by the Merits Committee, of which I am a member. What has been said already arises out of the implementation of Section 5 of the Housing Act 2004. I do not think that a case was made then, nor has one been made since, for the abandonment of self-regulation and the creation of a new class of certified inspectors.
	Such a bureaucratic intervention will not improve the working of the housing market. There are no reported distortions of substance to the housing market which call for government intervention and control. The Explanatory Memorandum and the regulatory impact assessment, which accompany the regulations, do not claim that there are. The proposed public sector regime does not follow from the consultation process and the responses to them. The driver in my view has been political philosophy, a perceived need to intervene and control, and not an accurate assessment of the best interests of buyers and sellers in a market which in general works well.
	I will focus now on the energy performance certificates. These are the remaining mandatory plank on which the Government rely after correctly ditching home condition reports as mandatory. I cite the Explanatory Memorandum which came with the Home Information Pack Regulations. It states:
	"The Regulations refer to energy performance certificates as the certificate required by Council Directive 2002/91/EEC (Energy Performance of Buildings Directive) whose form and content complies with any enactment which implements that Directive made in accordance with article 7. Article 7 is expected to be implemented by January 2009. These Regulations do not implement the Directive, and given that they do not do so, there is no requirement to provide a Transposition Note".
	So we are left wondering what is the future of the energy performance certificate. At first reading of the directive, it does not look especially onerous or unduly technical. Its major impact will be not on family houses of different types but on larger buildings, but we have yet to see how it will be transposed and how expert the required experts will need to be. In the mean time, as the Joint Committee asks in its 34th report of July, given the 2009 implementation date, why is there not an "express temporary exception" from the obligation to include energy performance certificates or predicted ones in home information packs? Given that uncertainty, no one in their right mind would rely for regular employment on becoming a home inspector. The fees earned may turn out to be nugatory.
	It is also high time for a second full round of consultation. It is approaching eight years since the unfortunately titled document The key to easier home buying and selling was issued. Much has happened since then. Much is happening now. It would be wrong for the Government to cling to proposals which do not even follow from the advice that they received. The public deserve better.

Lord Selsdon: My Lords, I have declared my interests in the past. I begin this little monologue—dialogue, I suppose—by saying that time in reconnaissance is never wasted. However, the Government have spent an enormous amount of time in reconnaissance—very costly, very thorough. The noble Lord, Lord Rooker, provided me with a tremendous number of officials who briefed me thoroughly on everything and I am now a much wiser man.
	We are all looking for a more active, positive and beneficial housing market. That starts at the bottom end with social housing and ends, at the top end, with taxing those who spend an enormous amount of money on houses in London. The problem is that the bureaucracy and costs incurred unnecessarily in this country are higher than in others. In other countries they have a simple thing: an estate agent tries to charge as much as 10 per cent. In Germany, it is the buyer who pays the agent's fee.
	Here, our agents in general take 2.5 per cent, but the added costs can be quite considerable. A £200,000 house will have costs from transfer of sale of roughly 5 per cent—£10,000; a £250,000 house will have costs of £17,500—7 per cent; a £500,000 house will have costs of £37,500—7.8 per cent. The cost is the rising amount of stamp duty; other costs that follow are delays, which are stressful.
	If you seek to complete the purchase of a house, as the noble Lord, Lord Jenkin of Roding—to give him his full title, without the "s"—said, and you are dealing with leasehold, you then have the problem of having to do extra searches. For example, you may need to get the memorandum and articles of association of the company that owns that property to find out whether there is a sinking fund. Those costs go on and on. Surveys for mortgages are fairly simple: if the house is in a good area, you have a drive-by survey whereby someone just goes by and says, "Well, that house is worth enough".
	We tend to forget that it is not just about the buying and selling of the house but the importance of the house to the individual. Rather unfortunately, at least 15 per cent of people who occupy social housing should not now be there, because they can afford to buy or rent more expensive properties. When we consider all the joint schemes that are now advanced—shared schemes and others—one wonders whether those involved would have to pay the costs of the home information pack if they were transferred through.
	I will not try to be negative, because a real benefit could come out of all this by sitting down and thinking significantly about the importance of property to the individual. All political parties have accepted that we seek to be a property-owning democracy. We can argue about how that should be distributed. We all believe in regeneration and social housing, whatever you call it; that may be the move towards shared ownership and freeing up the letting market so that more people have the right to let.
	The crunch point is that, in general, 80 per cent of people's assets lie in their home or property and that 80 per cent of their debt is in their property, to which you can add hire purchases and debts related to the home. Therefore, the home is far more important than just being the home. It is someone's asset, and Governments who play around by increasing the cost to the homeowner of maintaining or trading his asset, or make it more difficult for him so to do, do so at their peril.

Baroness Hamwee: My Lords, the convention is that short debates of this sort are phrased in the form of a question. If I may say so to the noble Baroness, this is a very good Question. The "I told you so"s may be irresistible to some Members of your Lordships' House, but what really matters is: where now and how do we get there? On how we get there, there are both legal and practical aspects. The noble Lord, Lord Rooker, once paid me the compliment of saying that I was not a real lawyer—I think that he meant that I was not a barrister and did not wear a striped suit—but I think that it is the lawyer in me that has been unable to understand in technical terms how the Government are dealing with this. Are we to get new regulations? Will the Secretary of State use his power to suspend part of the Act, or what? I asked someone to phone the Department for Communities and Local Government to inquire about that. Understandably, the first contact did not know, but was going to phone back, but has not. If the department does not know, I do not know how the public can.
	Perhaps a more important point is what the Government will do now to boost confidence in home information packs. I must say that those who have been in sympathy for a long time with what the Government have been trying to do—if not all the detail and mechanisms—are finding that position hard to sustain. It has been a long time. The noble Lord, Lord Graham, said so. When I saw the publications in the Printed Paper Office with the DETR logo on them, I felt quite nostalgic.
	According to the Observer in July, the personal financial industry is believed to have spent £225 million on HIPs to date. The article stated:
	"While you may not be too bothered about lenders, lawyers and estate agents losing money, I'm sure you are under no illusion about the fact that it will be the consumer who ends up paying".
	My noble friend Lord Addington spoke vividly about the trainees who have paid. I hope that the Minister can be clear about how they will be treated in future. She has been asked about the trials, the dry runs, which are being undertaken and planned. I am sure that the House will be especially interested to hear what are the criteria for judging their success. In June, I read a comment from HBOS that said that lenders had been insufficiently involved in the dry run, that key elements would be tested too late and not tested at volume. That has been touched on.
	Home information packs are not the biggest issue in housing. To me, the issue is the supply. If a local authority got into such a pickle, the district auditor and the Audit Commission would come down on it like a ton of bricks. I wonder whether the National Audit Office will take a look at this.
	In conclusion, all those in property—there are several in the Chamber tonight—know the dangers of misrepresentation. With that thought, I urge the Government to be entirely clear about their intentions from now on. They represented in a technical fashion to potential trainees that these schemes were going ahead to a timetable, and those trainees need to be compensated. The Government cannot afford another stumble; they need to be clear in order to recover confidence.

Lord Hunt of Wirral: My Lords, I declare my interest as a partner in Beachcroft LLP and the other entries on the Register. I warmly congratulate my noble friend on securing the debate and on her lucid and penetrating speech. To summarise what has been said in the debate, the Government have a disastrous policy that is now in a terrible mess. I therefore want to give the Minister as long as possible to explain. We do not have to finish until eight minutes to nine, so she will have a long time to do so, and we are avid to listen.
	It is never endearing to say, "I told you so"—I agree with the noble Baroness, Lady Hamwee, that there is little profit in saying that—but many of us on this side of the House, as we have heard, warned Ministers from the outset that their policy on home information packs was ill-thought-out, intrusive, and expensive nonsense. Much more important is the fact that many of us warned that the policy was likely to unravel, and I echo what my noble friend said about the whole pack of cards coming tumbling down. The fundamental point is surely that moving home is already one of the most stressful, debilitating and, above all, costly undertakings. It was generally felt that HIPs could serve only to add to the general nuisance and woe. My noble friends Lady Hanham and Lord Jenkin of Roding are right to talk about that stress. We must bear that in mind. My noble friend Lord Selsdon, too, is quite right that 80 per cent of the assets—80 per cent of the debt—is in a person's home. We must therefore handle this policy very carefully.
	In their original form, HIPs would have cost as much as a survey. Indeed, in many ways they were going to replicate a buyer's survey but would in no way obviate the need for one. Numerous headlines in July said that the Government had seen sense and had backtracked on all this nonsense, but the truth is not quite so simple or so gratifying. The statement given on 30 July informs us that the only aspect of the Government's policy that has changed will now be an authorised rather than a mandatory aspect ofthe HIP during the dry run. I recall exchanges with the noble Lord, Lord Rooker, about the dry run and the trials. The ominous note in the statement is an implied threat that mandatory HCRs will remain on the table if the industry fails to make a success of its rollout.
	HCRs are supposedly so attractive that they will take flight majestically entirely voluntarily, but just in case they do not, the market must now operate under the shadow of the Government's power to impose them as and when Ministers dictate. So the leopard's spots have not changed that much after all, although I hope that the Minister will clarify all this for us. We have already heard from my noble friend Lord Eccles that the Joint Committee found some defective drafting; no doubt the Minister will explain all that and speak in her defence. We have also heard that the EPCs are a very good aspect, and I agree with my noble friend Lord Jenkin that there is a good case for them; my noble friend Lord Eccles said the same.
	There are so many questions; the noble Earl, my good friend Lord Caithness, posed a whole set of them. I would like the Minister to respond to the point about compensation made by the noble Lord, Lord Addington, who, with the noble Earl, has instanced the number of people who took the training and have spent a great deal of money, only for the Government to move the goalposts. We need as quickly as possible an explanation of exactly where the Government are at the moment. That, of course, is my noble friend's question.

Baroness Andrews: My Lords, the noble Baroness, Lady Hanham, has done the House a service by converting her Question into a debate. I share noble Lords' frustration that it is a short debate, and I shall try to answer as many questions as possible. I will certainly write to noble Lords if I cannot answer all of them in the time available.
	It has been a very thoughtful debate, and I know that I face many veterans of this policy on the opposition Benches. I shall concentrate on where we go now in order to answer the noble Baroness's Question, but I must say a little about where we have come from. I thank my noble friend Lord Graham for his support. I had another supporter, but he became sick. It is a pleasure to share the Bench with my noble friend Lord Rooker.
	I start by making it clear that we are fully committed to making home information packs work in the interests of consumers and the industry as a whole. We have agreed on two things tonight: there is nothing more stressful than buying a home; and the home is our greatest, most valuable and most emotive asset. We are right to respect people's passionate feelings about that, so the need to make the process of buying and selling homes more predictable, less stressful and less wasteful is as urgent and as inescapable as ever. I was delighted to hear the noble Earl, Lord Caithness, say that we should think about the future, because to accept the status quo is an indefensible position. We still have the slowest system in Europe, slower than it was in 1998, and it is horrendously complicated. I very much respect the positive experience that the noble Lord, Lord Jenkin, had with his estate agent, but not all such experiences are so positive. I will return to the point. I do not think that either party opposite would want to put themselves on the opposite side to the majority of consumers who find themselves largely dissatisfied with a process that is so unpredictable and wasteful of emotional energy.
	The noble Lord, Lord Selsdon, made a very good case for home information packs. It was a very thoughtful and helpful speech in many respects. Noble Lords have asked about the point of having a home information pack without including the home condition report. On the evidence that we have collected, and the evidence from places such as Denmark and New South Wales, we still rightly believe that a single legal document up-front that brings together vital information—sometimes elusive information such as leaseholds that may be scattered in solicitors' officers or banks or buried in filing cabinets from where it has to be dug out—can make the system simpler and more transparent, particularly for the first-time buyer. I do not want to introduce a personal note into the debate but I am currently in the process of collecting such documentation. I think that this system can remove obstacles in terms of speed and complexity in what is a very uncertain process.
	There are costs in the system but they will be transferred from the buyer to the seller, and most sellers are also buyers. What a boon it is for first-time buyers to be able to look at a house and to know that they will be given the information they need up-front by the seller. If they do not buy one house they can find another one and they will not have to pay for a second set of papers.
	On balance, noble Lords have welcomed the energy performance certificate, which is the other mandatory aspect of the HIP. I am glad about that. However, I say to noble Lords who questioned why the EPC was brought forward now—as though it were intended to mask the mandatory nature of the packs—that we have to tackle climate change in this country. Our homes emit huge amounts of carbon. We have no time to waste. We are bringing the EPC forward now because it will contribute to achieving a target of a 20 per cent reduction in carbon emissions by 2010. It will do so by informing people how to save on energy costs, how to improve insulation and how to reduce their bills. This is a win-win situation. We did not have to wait until 2009 and we chose not to because the situation is urgent. It is something that we could do something about. The regulations that we will introduce, to which I shall refer later, will be amended to make stand-alone energy performance certificates a mandatory component of home information packs. Finally, I confirm that home information packs will come into effect, as we have already announced, in June 2007. That is one element of the answer to the Question raised by the noble Baroness.
	I turn now to the burden of the debate—which is why we made the change and the implications for the industry and people in training. The change announced in July does not in any way imply a loss of faith in the value of home condition reports—far from it. Why should it be easier to get an MoT on a car than it is to get a comprehensive account of the state of one's prospective home, especially since only 30 per cent of people get a mid-range survey? Our position regarding June was nothing to do with the value that we place on the home condition report but was to do with our obligation to the consumer to have the best possible product that would bring the most effective benefits. Three elements in combination affected our decision. They have been touched on but I should like to enlarge on them a little.
	The first element was the timing, which was dictated by the fact that when we did the dry run collecting evidence, no matter how expansive the reconnaissance, the real-world impact of home condition reports proved to be very difficult. There were 15,000 voluntary packs in operation, only 250 of which had a home condition element. None of them had a home condition report and we could not test or trial them because the home inspectors were not in place. It became clear that we had to test them in a real world environment. At the same time, we thought that a mandatory test—and we were well advised on this—would be deeply unpopular and flawed not least because people who moved from one area to another would end up by paying twice. In June, we therefore took the decision that we had to have proper, independently evaluated trials which would be conducted by home inspectors.
	The second element, which was made clear to us, was that despite its best efforts, the lending industry did not have its automated valuation systems in place to the extent that the information generated by the HCR could be used to make mortgage evaluations a simpler desktop process—which is where the lending industry wants to go in many respects.
	Thirdly, I come to the point about home inspectors. We were confident about the numbers and in the summer we gave the figure of 7,500. But as the training went through, it became clear from the pace of qualification that we could not predict with certainty that we would have that number of qualified home inspectors in place by next June. People were coming into the scheme either from the surveying profession or, as was the case of the brother of the noble Lord, Lord Addington, from scratch. They were progressing at their own pace and were therefore qualifying at different rates. Taking all those concerns together, to have pushed ahead with all aspects of the home information packs as well as home condition reports in one big bang on a single day next June would have been irresponsible. We could not take that risk on behalf of the consumer.
	I shall turn briefly to where we are now. We understand the impact on the industry, although I was interested to note that membership of the Association of Home Information Providers has seen a net gain, while the number of early adopters has increased. But the most important element concerns the serious personal consequences this has had for individuals, and we do not minimise that. The Secretary of State was quick to apologise, and that apology was very sincerely meant. We do not believe that it is appropriate to offer compensation for reasons I will explain. The trials and testing involved in the voluntary rollout will absorb people in training. Some 470 home inspectors have completed their training and 177 have been issued with their diploma. The first of those qualified inspectors will be involved in the trials we are about to start and in the subsequent rollout, and as they roll out more will be needed. They will also certainly be needed in order to meet the demand for energy performance certificates because at the moment they are the only people qualified to issue them. However, by 2009 when the rental market will become involved by being required to prepare energy performance certificates, we will need a lot more inspectors. As we are talking about 1.8 million rental transactions, many more qualified people will be needed to award the certificate. Not only are we confident that we will have enough work for the inspectors in that respect, but we are also putting in place an assessor's qualification which will become available next February; it will match the national occupational standards for energy assessment.
	We are now investing in a very serious process of trials and testing. It involves only six areas, but they are very different and discrete, and so we think we can achieve a real result. The first of the recruitment evenings took place last night. Some 200 organisations have shown an interest in these preparations, and 75 are already involved in the dry run. Moreover, the private sector will be very firmly encouraged to take part. Government office staff and time have been committed to support the trials and regional publicity campaigns will be run. The trials will examine the take-up and use of both the HIP and the home condition report. Certificated home inspectors will be involved, as well as estate agents and so forth. We need to understand the impact and how useful the pack is not just on the process but also on the quality of the experience in order to maximise its benefits. Will we need to change some of the emphases? Will it need to be fine-tuned in some ways? How can we accelerate the benefits and maximise the impact of energy performance certificates? Money will be used for communication and advertising, and we will be offering incentives in the form of a limited number of free packs as well as packs in which the mandatory element will be provided to the seller free of charge, leaving them free to pay for the HCR, and packs provided on a no-sale, no-fee basis. This is a trial and it will be empirical.
	What is most important—and here I respond to the noble Earl, Lord Caithness—is that the trials will be evaluated by independent researchers who will monitor them in order to provide an objective understanding of what is happening. The results will feed back into the process and will be published in order to inform our decisions. So in essence our policy is to make a success of the rollout by evaluating the trials as comprehensively as possible. We will keep Members of this House as well informed as we can, along with lenders and all those who go along with us.
	In response to questions put by the noble Baroness, Lady Hamwee, we will look to see whether people genuinely feel better informed and more confident as a result of the pack. We expect these trials to confirm the benefits which have been found in Denmark, for example, where recent research found overwhelming support for the positive benefits. I can make that research available to noble Lords. We will also look at how long transactions take to complete without packs and whether they prevent transaction failures. While it is clear that they will not prevent such failures where people behave badly or circumstances change, we will be looking at how consumers can obtain greater protections through the packs. A very rigorous set of questions will be asked and the criteria will be qualitative rather than just quantitative because it is the qualitative element that will be extremely important.
	As for first-day marketing, we cannot prescribe in relation to that, as these are trials, but we hope to look at various factors including the impact of allowing marketing to commence once a home information pack has been commissioned. I will write further to noble Lords on that point.
	Finally, we have also made real progress in the certification process. The first certification scheme is now going through the approval process. It will be run by the Surveyors and Valuers Accreditation, which will manage the registration. It will ensure that each inspector has PI insurance. As regards registration, a preferred bidder has been found in Landmark Solutions and that will provide us with the database. The DTI has also announced the criteria that the Secretary of State will use to assess the suitability of applicants to run the redress scheme that will be available to anyone who has a complaint. This will offer protection against unscrupulous agents.
	The regulations will be amended and we will come forward with them early next year. The home condition report will be an authorised document—that is one change that will be made in the regulations—and the energy performance certificate will be a mandatory document. We will publish detailed information on the website. I am very sorry that the noble Baroness did not have a reply and I will look into it.

Baroness Hanham: My Lords, if the regulations are being revised, what is the status of the regulations issued in July? Are they being withdrawn or are they being allowed? They have had a great hole blown in them. What is their status?

Baroness Andrews: My Lords, my understanding is that, having been laid and passed in the other House, they stand. They will be reintroduced to be amended. If I am wrong about that I shall write to the noble Baroness.
	I have probably not answered to the full satisfaction of noble Lords some of the personal issues that have been raised. However, I shall read Hansard very carefully tomorrow and reply in more detail as and when I can. Again, I am grateful to the noble Baroness for the opportunity to have this debate. I will keep the House informed as we go through this process.

Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn during pleasure for one minute.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 8.51 to 8.52 pm.]

Armed Forces Bill

House again in Committee.
	Clause 122 [Powers of CO after charge]:
	[Amendments Nos. 92 and 93 not moved.]
	Clause 122 agreed to.
	Clause 123 agreed to.
	Clause 124 [Powers of DSP in respect of charge allocated for Court Martial trial]:

Lord Drayson: moved Amendment No. 93A:
	Page 60, line 21, leave out "or"

Lord Drayson: In moving AmendmentNo. 93A, I will also speak to Amendments Nos. 93B, 94, 94A, 94B and 139A. Let me set these amendments in context. Up to now, we have been dealing with the way in which the military criminal justice system deals with the most serious offences, including those committed on operations. The integrity of the system is essential to the confidence in which it is held. At one extreme, as we have already discussed, a soldier who acts within the rules of engagement and whose actions are reasonable can be confident that he will be found to have acted within the law. So if he kills somebody in those circumstances, he will not be guilty of murder.
	It is just as important that a soldier has confidence in the summary discipline system, which, of course, will continue to deal with some 95 per cent of all service offences. Part of that confidence comes from knowing that he can exercise his right to elect trial by the court martial and that there will be no disincentive to do so.
	These are minor amendments that ensure that there is no ambiguity in the provisions that relate to where an accused elects trial by the court martial. I have written to noble Lords about these amendments and trust that, given the reassurance that they will further protect the accused's position, the Committee will accept them. I beg to move.

On Question, amendment agreed to.

Lord Drayson: moved Amendment No. 93B:
	Page 60, line 23, at end insert "; or
	(c) where the charge is in respect of an offence which would be a relevant offence for the purposes of section (Sentencing powers of Court Martial where election for trial by that court instead of CO) (election for trial by Court Martial) if the accused were convicted or acquitted of it.
	( ) Subsection (3)(c) does not apply in relation to powers under subsection (2)(e) (which are restricted by section 129)."
	On Question, amendment agreed to.
	Clause 124, as amended, agreed to.
	Clauses 125 to 127 agreed to.
	Clause 128 [Right to elect Court Martial trial]:

Lord Drayson: moved Amendment No. 94:
	Page 62, line 15, leave out from "accused" to "an" in line 16 and insert "are to be heard summarily together,"
	On Question, amendment agreed to.
	Clause 128, as amended, agreed to.
	Clause 129 [Further consequences of election for Court Martial trial]:

Lord Drayson: moved Amendments Nos. 94A to 94B:
	Page 62, line 28, leave out subsections (2) and (3) and insert-
	"(2) The Director of Service Prosecutions ("the Director") may not without the written consent of the accused refer to a commanding officer, under section 124(2)(e)-
	(a) that charge (whether or not amended by the Director), or (b) any charge substituted under section 124(2)(b) or additionally brought under section 124(2)(c)."
	Page 62, line 40, leave out "(3)(b)" and insert "(2)"
	On Question, amendments agreed to.
	Clause 129, as amended, agreed to.
	Clauses 130 and 131 agreed to.
	Clause 132 [Detention: limits on powers]:

Earl Attlee: moved Amendment No. 95:
	Page 65, line 11, leave out "90" and insert "60"

Earl Attlee: In moving AmendmentNo. 95, I shall speak also to Amendments Nos. 96 and 162 but not to Amendments Nos. 97, 160 and 161.
	Everyone in the Armed Forces dreads the term "military detention". But the Committee will be aware that it is very effective not just as a punishment but for personal development. Military detention is a good thing; it is not like prison.
	Sixty days' military detention is quite sufficient. I agree that the Royal Navy has in the past enjoyed90 days as a maximum, with extended powers from superior authority, but if the Army could survive for so long with a detention period of only 60 days, why does it now need a 50 per cent increase?
	Clause 294, to which Amendment No. 162 relates, sensibly provides that a person sentenced to service detention may not be detained in a prison, because detention is not imprisonment—it is much better and much more effective. However, there is no provision for flexibility, so what happens in the event of a vehicle breakdown or perhaps a fire in the intended accommodation or some other emergency? The servicemen need to be kept in detention. The obvious solution would be to put them in a prison overnight, but to tell the prison authorities to look after them and perhaps treat them as remand prisoners. I do not understand why there is no flexibility in the sensible provision prohibiting servicemen who are in detention from being kept in a prison. I beg to move.

Lord Garden: I support Amendments Nos. 95 and 96 of the noble Earl, Lord Attlee. In our discussions with the Bill team, we have spoken on occasions about the difficulty of harmonising the various traditional punishments available to the three services, which have differed over the years. I agree with the noble Earl that it seems unnecessary in this case to harmonise upwards from 60 days to 90 days to accommodate the Royal Navy, detention being different from imprisonment.
	However, I disagree with the noble Earl on his Amendment No. 162. Given that the offences for which detention is imposed are, by their nature, less severe than those that would bring imprisonment, we do not need to include circumstances in which people may be put in prison when they have been sentenced to detention.

Viscount Slim: I have wondered about this matter. I hope that the Minister will give a good explanation. Detention is not imprisonment. Sixty days has always been sufficient as a maximum in my experience. I do not see why we have to go up the hill.

Lord Drayson: The powers of punishment that a commanding officer should be able to impose have been very carefully considered by the Ministry of Defence. In determining that 90 days should be the maximum period of detention that a commanding officer can impose, we sought to balance the needs of each of the services, to avoid any unnecessary increase in the numbers of courts martial and to ensure fairness to individuals who face charges. Summary justice has the distinct advantage of providing a speedy but fair outcome for an accused person.
	However, we have also included significant protections in the exercise of these powers. In particular, the power to impose any period of detention that is greater than 28 days will require a commanding officer to get agreement from higher authority. The accused will know before a hearing whether the commanding officer has been given such authority. There will also be a universal right to elect; there will be an automatic right to appeal; and sentences of detention will not begin until the time for an appeal has elapsed or an appeal has been heard, unless the accused agrees to the detention starting before then.
	Under Clause 294, those sentenced to service detention may be held in service custody, but not detained in prison. Modern transportation and the availability of service custody facilities for temporary accommodation mean that it would never be necessary to accommodate someone in a civil prison—and there are no longer any military prisons. Amendment No. 162, which provides for this, is therefore unnecessary. I hope that the noble Earl feels able not to press his amendments following my explanations.

Earl Attlee: I am grateful for the Minister's response. First, he said that to impose a sentence in excess of 28 days should need a higher authority's permission, but that has always been the case. It is not a new provision, certainly as far as the Army is concerned. How often has the Royal Navy used a period of detention in excess of 60 days? Does the Minister have any evidence on that? If he does not have it to hand, perhaps he could write to me and let me know how often that has happened.
	I am grateful for the Minister's response to Amendment No. 162, although I can understand noble Lords' lack of enthusiasm for it. I am grateful for his assertion that it will never be necessary to resort to putting servicemen in a prison. If that is his assessment of the situation, that is fine. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 96 not moved.]
	Clause 132 agreed to.
	Clause 133 agreed to.
	Clause 134 [Reduction in rank: limits on powers]:
	[Amendment No. 97 not moved.]
	Clause 134 agreed to.
	Clause 135 agreed to.
	Clause 136 [Service compensation orders: maximum amount]:

The Countess of Mar: I remind noble Lords that if Amendment No. 98 is agreed to, Amendments Nos. 99 and 100 cannot be moved.

Lord Drayson: moved Amendment No. 98:
	Page 67, line 16, leave out subsection (3) and insert-
	"(3) If it appears to the Secretary of State that there has been a change in the value of money since the relevant date, he may by order substitute for the sum for the time being specified in subsections (1) and (2) such other sum as appears to him justified by the change.
	(4) In subsection (3) "the relevant date" means-
	(a) the date of the coming into force of this section; or (b) where the sum for the time being specified in subsections (1) and (2) was substituted for a sum previously so specified, the date of the substitution."

Lord Drayson: Amendment No. 98 meets the points addressed in Amendments Nos. 99 and 100 on the power to increase the maximum level of compensation, and I urge noble Lords to accept it. I beg to move.

Earl Attlee: I cannot say whether I tabled my amendment before the Minister tabled his, but I am grateful to him for accepting the principle that there should be some limitation on the ability to change the figures concerned.

Lord Garden: There are three amendments all aiming to achieve the same thing, and I add my support for this one. I am very happy with the Government's amendment.

On Question, amendment agreed to.
	[Amendments Nos. 99 and 100 not moved.]
	Clause 136, as amended, agreed to.
	Clauses 137 to 139 agreed to.
	Clause 140 [Right of appeal]:

Lord Garden: moved Amendment No. 101:
	Page 68, line 38, leave out "14" and insert "28"

Lord Garden: This is by way of a probing amendment to see what surveys have been done by the Ministry of Defence to see how easy it is for a case for appeal to be put together by a defendant in the timescale of 14 days, which has been the practice in the past.On the face of it, it a seems a rather short time under certain circumstances. My suggestion of extending it to 28 days was purely a suggestion. Before we simply accept that the practice of the past is right, we need to know how much work has been done to check that it does work.
	My Amendment No. 105 in this group seeks to make it clear that time spent in detention counts fully towards the sentence, not just that it counts towards the sentence. I beg to move.

Earl Attlee: I have amendments in this group. The Bill covers the composition of the court martial. It states that, to be on a court martial, an officer must have an aggregate of three years' commissioned service. However, there is a difficulty with that. He could have had two years' commissioned service several years ago, a gap in service and then come back into the services and suddenly find himself on a court martial. I suggest that he should have three years' continuous service before being on a court martial. I appreciate that would slightly reduce the pool of officers available for courts martial but, on the other hand, it would improve their quality.
	Clause 142(2) states that,
	"immediately before receiving his commission, he was a warrant officer in any of those forces".
	The difficulty here is that sometimes senior NCOs, perhaps a staff sergeant or equivalent, are commissioned. That person has plenty of military experience and the qualities to enable him to be commissioned but he cannot be on a court martial because he was not a warrant officer immediately before being commissioned. I shall be interested to hear the Minister's views on that point.

Lord Garden: I wish to address the amendments of the noble Earl, Lord Attlee. I support those that look for continuous service, which seems an entirely reasonable idea. However, I have a problem with commissioned senior NCOs. The variation between the services is important here. In the Air Force, and presumably in the Army Air Corps as well, some senior NCOs have relatively short service because they have gained professional qualifications and have come in at senior NCO level. Therefore, they would not fulfil these requirements when commissioned. The relevant amendment needs to be looked at more closely.

Lord Drayson: This group deals with amendments to the Summary Appeal Court—Amendments Nos. 101 to 105, relating to Clauses 140, 142 and 146. I shall focus on those amendments first. The Summary Appeal Court was first introduced under the Armed Forces Discipline Act 2000. The services have therefore had almost six years of practical experience of it. This has helped us considerably in drafting the Bill in that regard.
	With regard to Amendment No. 101 to Clause 140, we think that the 14-day initial period, which currently applies under the service discipline Acts, is one that sufficiently balances the interests of the offender, the services and the system generally. It must be remembered that there is an automatic right of appeal. So the individual is merely required to give notice of his intention to appeal and does not need to supply any grounds within this 14-day period. There is provision in Clause 140(2)(b) and (3) for this initial period to be extended with the leave of the court, either before the initial period expires or at a later stage. So in appropriate cases the offender will be permitted a longer period.
	One of the most important benefits of the summary hearing process is that it can deal with cases quickly. As long as this is balanced against the need for the accused to have a reasonable time in which to prepare his case, then dealing swiftly with summary cases, and that includes any appeal, should be the objective. This works in the interests of the accused, any victim and the interests of the services.
	To extend the initial period for appeal to 28 days would not assist in the aspiration that such lower level cases be heard and disposed of as soon after the original incident as is reasonable. There are no factors that suggest that the current 14-day period is causing any difficulty for appellants or unfairness. In those circumstances, I hope that the noble Lord will withdraw his amendment.
	Amendments Nos. 102 to 104 all relate to the period that an officer must have served before he is qualified to sit as a member of the SAC. First, they remove the provision that officers with an aggregate of three years' commissioned service are qualified, so that only those with three years' continuous experience would be qualified. Secondly, an officer who was a warrant officer is not subject to a three-year qualification. The amendment seeks to apply this exception to officers who were senior non-commissioned officers before they became commissioned officers. The provisions in the Bill ensure that those who act as a member of the Summary Appeal Court will have sufficient service experience, including the experience of commanding others, to properly undertake their responsibilities as a Summary Appeal Court member.
	Not all commissioned officers will have served continuously for a three-year period but will have over three years' aggregate experience. Some officers will have left their service and subsequently rejoined, or may have left their service to join another. The experience level of such officers is not diminished simply because of a break in their service. The amendments would have the effect of preventing such officers being appointed as a member of the Summary Appeal Court and would therefore reduce the pool of those who might be appointed as a member. It is not right or sensible to disqualify certain officers who possess the necessary skills and experience from membership of the SAC.
	On the second point, a warrant officer is qualified on the basis of the skills and experience that he will inevitably have acquired. A senior non-commissioned officer will not always have acquired those, and it would not therefore always be appropriate for an officer to qualify for membership simply because he previously held that rank. I therefore ask the noble Lord to consider not moving his amendments.
	On Amendment No. 105, I can reassure noble Lords that the clause as drafted means that the whole period which the appellant has served will be taken into account when the SAC considers substituting a term of detention and the length of it. The inclusion of "full" adds nothing. I trust, therefore, that the noble Lords will feel able to not move this amendment.
	Finally, I will deal with the government amendments in this group, which simply change the reference from the "Supreme Court" of Northern Ireland to the "Court of Judicature". The Supreme Court of Northern Ireland is renamed under the Constitutional Reform Act 2005 as the Court of Judicature of Northern Ireland. Although that term has not yet been commenced, it makes sense for the Bill to reflect it. It occurs first in Clause 142 in relation to membership of the Summary Appeal Court and then in Clauses 155, 348, 358, 359 and in Schedule 9, where there is a need to refer to specific legal qualifications including those of Northern Irish solicitors and barristers. I urge noble Lords to accept these amendments.

Lord Campbell of Alloway: I ask the noble Lord whether he would care to take into account that in Clause 140 "14 days" is in effect covered by subsection (2)(b), which is consistent with the way that the High Court, or any other court, manages its affairs. It is not a cut-off date.

Lord Drayson: I am grateful to the noble Lord, and I will look at that.

Lord Garden: I am entirely happy with the government amendments, which are tidying-up amendments, and there is no problem there. I am also grateful for the assurance on my Amendment No. 105, that this will be interpreted as counting fully towards a sentence.
	I am less enthused by the Minister's response both to my Amendment No. 101 and to the amendment tabled by the noble Earl, Lord Attlee, on continuous service. He described very well what the Bill is trying to do, but he did not actually answer our questions. It seems to me that the Minister needs to respond. I asked what surveys had been done to make sure that 14 days is sufficient. I was not attached particularly to 28 days, so there was no point arguing against my28 days. I want to know whether we have done some work to see whether this is reasonable.
	On the noble Earl's amendments, we heard a similar restatement of what is in the Bill, but we did not hear why what is in the Bill is right, as opposed to what the noble Earl proposes.

Lord Drayson: I am grateful to the noble Lord and I apologise; I did not address his question relating to surveys. I will go back to the department and ask for an explanation as to the level of research carried out in this area and write to the noble Lord. I shall write also to the noble Earl with further details in response to his points.

Lord Garden: I am grateful to the Minister and, given those assurances, I am content to withdraw my amendment.

Earl Attlee: I am grateful for the Minister's response to my amendments; however, I am not convinced by his response to my Amendments Nos. 102 and 103 regarding continuous service. I am grateful for the support given by the noble Lord, Lord Garden, to those. However, I am grateful for the Minister's response to Amendment No. 104 and I better understand the Bill's provisions. I agree with the noble Lord, Lord Garden—for example, in my own corps, it is possible to be promoted to sergeant in a technician trade fairly quickly although he may not have sufficient experience. I did not properly understand the Bill's drafting, but I do now.

Lord Garden: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 140 agreed to.
	Clause 141 agreed to.
	Clause 142 [Officers and warrant officers qualified for membership of the SAC]:
	[Amendments Nos. 102 to 104 not moved.]

Lord Drayson: moved Amendment No. 104A:
	Page 69, line 39, leave out "Supreme Court" and insert "Court of Judicature"
	On Question, amendment agreed to.
	Clause 142, as amended, agreed to.
	Clauses 143 to 145 agreed to.
	Clause 146 [Powers of the SAC]:
	[Amendment No. 105 not moved.]
	Clause 146 agreed to.
	Clauses 147 to 152 agreed to.
	[Amendments Nos. 106 to 116 not moved.]
	Clause 153 agreed to.
	Clause 154 [Constitution of the Court Martial]:

Lord Thomas of Gresford: moved AmendmentNo. 117:
	Page 75, line 12, leave out "a prescribed number of" and insert "five or seven"

Lord Thomas of Gresford: This part of the Bill deals with trial by the court martial and Clause 154 deals with its constitution. We are seeking drastically to alter the way in which the court martial panel is chosen and to prescribe the number of people on it. The first amendment in the group is to subsection (1)(b), whereby the court martial would consist of a judge advocate and "five or seven" other persons, of whom,
	"a prescribed number must be officers or warrant officers".
	Then, by amendment, we seek that the rest may be drawn from all ranks who are qualified for membership and not ineligible under the clause.
	The amendment to subsection (1)(b)(ii) is to make provision in the court martial rules that the persons specified in subsection (1)(b) shall be drawn from each and every branch of the armed services. Then, under subsection (4), we seek that the members of the court are not to be specified by or on behalf of the court administration officer but selected by a ballot from a pool constituted of people eligible to sit as members of the court martial.
	In the same group, we go on to suggest a new clause after Clause 156 specifying that to qualify for membership of the court martial a person should simply be a serving member of the Armed Forces and subject to service law. It excludes only people who are, for example, members of the court service, members of the Military Police or those who have been involved in an investigation. That important alteration would open up the court martial across all ranks and not confine it, as at present, simply to officers, usually a single warrant officer.
	We also seek to include with these amendments the question of reports. Amendment No. 129 states:
	"No report of any description shall be made referring, whether favourably or unfavourably, to the decisions of any member of the court when sitting in the Court Martial".
	Members of the Committee will recall that I referred earlier to that as being an answer to the Morris point, where the European court had held that the court martial system, which enabled junior officers to be reported for the purposes of files, might affect the future career of those officers according to the way in which they conducted themselves in the court martial.
	Finally, we deal with the question of unanimity or, alternatively, majority verdicts, but in a very different way from the present type of majority verdict, which is a simple majority.
	Therefore, this is a complete recasting of the composition of the panel and, in many ways, it mirrors the evidence given by the Judge Advocate General, Judge Blackett, to the Select Committee when he was asked questions about it. Members of the Committee will recall that I have already referred to the fact that he wishes the court martial system to approximate as closely as possible to the civil Crown Court procedure in all the circumstances.
	I shall deal with these points in a number of ways. I turn, first, to the ability to have on the court martial members of all ranks. This would be quite different from the present situation. To my mind, one objection to the court martial system is precisely that the private soldier who appears before the court martial is appearing in front of officers or a very senior warrant officer, and that is an intimidating experience on any view. It does not begin to approximate the Magna Carta requirement of a trial by one's peers. The only way in which it can be said to comply with it is that Magna Carta requires a trial by one's peers or according to the law of the land. It is on that second part that, in argument in the House of Lords, the Government relied in the case of Boyd and others.
	That this is not such an amazing departure can be evidenced by the Universal Code of Military Justice, which was adopted in America in about 1952-53, when it was determined that the American system of courts martial was not compliant with the United States constitution. I am sure that it has been amended from time to time—certainly, an amendment is now part of Article 25. Your Lordships will forgive me if I read it because it illustrates how another common law country with a great tradition and all the safeguards of due process, which are contained in the constitution, has interpreted this problem.
	Article 25(c) states:
	"Any enlisted member of an armed force on active duty who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of an armed force who may lawfully be brought before such courts for trial, but he shall serve as a member of a court only if, before the conclusion of the session called by the military judge ... prior to the trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it".
	The first requirement in the American code is that there is a request by the defendant. It continues:
	"After such a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained".
	Once the request has been made, the second requirement in the American code is that one third, at least, be enlisted men. The code continues:
	"When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade".
	That provision exists in this country. Although the defendant may require enlisted men if he is of the rank of sergeant or whatever, he cannot have people of lesser rank dealing with it. It continues:
	"When convening a court-martial, the convening authority shall detail as member thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service and judicial temperament. No member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness of the prosecution or investigating officer".
	The authority that convenes has regard to the particular people who are part of the pool from which the court martial is chosen: a request from the defendant, one third of the membership, nobody of a rank below that of the defendant, people chosen for their experience, and so on. Those are the requirements in America. I see no reason why a similar system cannot be properly introduced in this country. One of the problems of the system is that there are class divisions within it. That is contrary to the temper of the United Kingdom in this day and age.
	I turn from that proposition to the one that the court martial, while not having to be unanimous, must by a significant majority find guilt before guilt can be established. In our amendment, where there are no fewer than seven members of the court, five of them must agree on the finding, and where there are five members of the court, four of them must agree. Where there is a non-unanimous finding of guilt, the president has to state in open court the number who agreed and the number who dissented from that finding. That is the equivalent of the majority verdict that exists in this country, and no doubt there would be directions by the judge advocate to the panel along the lines of the directions we are familiar with in the Crown Court.
	I refer again to the American experience, just to illustrate that these are not outrageous suggestions. The requirements in Article 52 of their code are that no person may be convicted of an offence for which the death penalty is made mandatory, except by unanimous verdict; no person can be convicted of any other offence unless two-thirds agree to that conviction; and no person is sentenced to life imprisonment or to confinement for more than 10 years unless three-fourths of the panel agree to those verdicts. The system in the States is much more conscious of due process. When they have majority verdicts, it is not just the simple majority that exists in this country.
	The argument that is always put for the other side is that magistrates decide by a majority, as may the Court of Appeal. In those circumstances, magistrates and judges are trained and experienced in court proceedings. When you are dealing with a panel of a court martial you are dealing with people who are not trained or experienced. They are much more akin to the juries we are familiar with.
	It is fairer and more within the spirit of the European Convention on Human Rights that we adopt majority verdict along the lines I have suggested in this amendment. It may be a considerable change from the present, but, supported by the chief judge of the system, I feel I am in a position to ask your Lordships to consent to it. I beg to move.

Earl Attlee: My Amendments Nos. 123 to 125 concern the continuous service of members of the panel. We have covered that point already, and do not need to go back to it. My Amendments Nos. 118 and 119 are similar to the points raised by the noble Lord, Lord Thomas, on Amendments Nos. 117 and 130 about majority verdicts. The subject has been far better covered by the noble Lord than I could possibly do.
	I am worried about the issue of majority verdicts. We do not know how the panel in a court martial comes to its decision. Does it seek to be unanimous, or does it vote formally? We simply do not know. My Amendment No. 131 allows research into the operation of the panel, but with some restrictions.
	I am afraid that I do not support the noble Lord, Lord Thomas, on the "recasting", as he put it, of the panel. I believe that it should be composed of officers and warrant officers. If we want to go down that route, we ought just to go for the Crown Court in the UK and completely forget about courts martial. We do not want to go that way, though.
	The noble Lord, Lord Thomas, said it would be intimidating for a serviceman to come before a court martial with the panel in front of him. I suspect that being cross-examined by the noble Lord is a bit intimidating as well. Another difficulty is that junior soldiers would not be trained and would not be experienced enough to decide these matters. The noble Lord touched on that as another difficulty. Sitting on a court martial is a bit much to ask of junior soldiers. Worse still, they may be a bit too quick to convict. It is important to remember that the panel is not supposed to be a jury; it is acting more as a judge. These are interesting matters to be raised.

Lord Campbell of Alloway: We are getting ahead of ourselves. My noble friend Lord Attlee is dealing with Amendment No. 131. I shall not speak to it now, but I oppose it outright. In the context of the amendment tabled by the noble Lord, Lord Thomas of Gresford—as we are going ahead a bit—if we look at Amendment No. 132, there are two types of majority. In due course, I shall speak to Amendment No. 132, but not now. What I am getting at is that these interrelated amendments are disparate because they relate to disparate clauses, but is it not possible for the structure to be withdrawn by the Government so that all these matters can be considered in relation to each other at the same time without the type of pre-emption we are having at the moment?

Earl Attlee: We are all grateful for the contribution of my noble friend, but this group starts with Amendment No. 117 and ends with Amendment No. 131.

Lord Drayson: I shall begin with Amendments Nos. 117, 118 and 119 relating to Clause 154. Having listened to the arguments made by noble Lords in support of these amendments, I accept that there may be benefits in stipulating the minimum and maximum numbers of lay members who may sit at a court martial. I am clear, for example, that there would never be fewer than three members of a court martial, excluding the Judge Advocate, but I need to look at the implications of putting that on the face of the Bill. I will review the wording and, if I can, I shall bring forward an amendment on Report.
	Amendment No. 122, which goes to Clause 154, requires those who are chosen to act as lay members to be selected by a ballot system. I assume that the purpose of the amendment is to ensure that each member is randomly selected. This amendment is unnecessary because each service has a broadly similar system for selecting lay members that embrace the principle of random selection. That random selection produces a pool of qualified personnel from which court administration officers appoint members unless they are ineligible. Personnel who are serving on operational tours are not selected.
	Under the Bill, the intention is to continue to select personnel in a similar manner. Setting out a requirement for a balloting system on the face of the legislation might place an unnecessary burden on the system or create unfairness. There must be flexibility in the methods of appointing court members in order to take into account their services' organisational and operational requirements.
	The main effect of Amendment No. 120 toClause 154 and Amendment No. 128—the new clause—appear to be that persons of any rank would be qualified to act as lay members of the court martial. This amendment would not be welcomed by the services. Operational effectiveness underpins the military justice system. We think that court-martial members must have sufficient service experience, which includes having experience of commanding others. Those below the rank of warrant officer or newly commissioned officers will not always have this experience. Clause 155 in the current Bill was drafted on that basis.
	On the issue of personnel from different services on courts martial, it is possible that this new clause after Clause 156 also seeks to ensure that the lay members of the court always comprise personnel from different services. The current wording of the Bill already allows for this. However, in most cases it is intended that the defendant will appear before a court made up of personnel from his own service. This was the preference of the First Sea Lord and the Chief of the General Staff who in their evidence to the Select Committee said that there should be a presumption for a single service board unless there is a good reason for a mixed board to be appointed—for example, when defendants from different services are tried together.
	Amendment No. 121 is, with respect to the noble Lord, unnecessary. Service personnel appointed to act as court members are currently drawn from all parts of their respective services. That will continue under the Bill. I believe that this matter is better dealt with in guidance.
	Amendments Nos. 123, 124 and 125 go to Clause 155. I have talked about eligibility for membership of the court martial and I will not go further on that matter. In responding to the points made by the noble Earl, Lord Attlee, and the noble Lord, Lord Garden, relating to continuous or aggregate service, it may be useful for me to state that we believe that a person who has been an officer for three years has considerable command experience, and we do not believe that he will lose this simply because he has a break in that experience.
	Amendments Nos. 126 and 127 to Clause 156 are unnecessary. As I have explained when dealing with Amendment No. 122, the services have three separate but broadly similar systems for selecting lay members which embrace the principle of random selection. Given this selection procedure, although it is not impossible, it is highly improbable that a person would be repeatedly appointed as a member of the court martial within an 18-month period.
	I understand the background to AmendmentNo. 129, but, as I said in my response to the chairman of the Joint Committee on Human Rights, we do not think it necessary or appropriate to take one element of the system—that relating to reporting procedures—and deal with it in legislation. What we have to ensure is that in practice all aspects of the system provide the necessary guarantees and impartiality including, as now, a prohibition on all reporting on the performance of the relevant participants. It is not necessary to make provision to this effect in the Bill. As with the decisions of jury members and others required to decide on the guilt of those accused of offences, the decisions of the members of the court martial should remain confidential.
	Currently, all members of a court swear under oath at the start of the trial not to disclose the vote or opinion of any of the members unless required through some legal obligation. Additionally the judge advocate reminds the members of their duty in this respect at the end of the hearing. It is intended that the same practices will continue at the court martial under the Bill.
	I deal next with Amendment No. 130 tabled in respect of Clause 159. The part of the amendment which prevents decisions being made on the basis of a simple majority is unnecessary.
	I have listened carefully to the arguments made by the noble Lord, Lord Thomas of Gresford, and his helpful description of the US system. I have also noted carefully the point he made about the fact that magistrates are trained. I will reflect on that, but we believe that the amendment is unnecessary. As he described, a summary trial in the magistrates' courts may be decided on the basis of a simple majority and most of the cases tried by the courts martial are akin to magistrates' courts trials, but I take on board his point about magistrates being trained. I will go away and reflect on that.
	With his experience, I am sure that the noble Lord is quite aware that many other jurisdictions allow simple majority verdicts, so I shall not labour that point here. I think that it is fair to say that there is nothing irregular or unsafe about a decision based on a simple majority vote system. Equally, we believe that it is unnecessary to require that a period of time must have elapsed before a decision based on a non-unanimous vote of members can be accepted.
	We believe that the proposal that the president should be required to state in open court the number of those who did not believe the accused to be guilty is inappropriate. As I said, the decisions of courts martial must be confidential. Disclosing those details would not be in the interests of justice, as that might influence the decisions of court martial members, even if the identity of those dissenting or agreeing to the guilty verdict was not revealed.
	I turn to Amendment No. 131, and take on board the point made by the noble Lord, Lord Campbell of Alloway, about the structure with reference to Amendment No. 132. Focusing on Amendment No. 131, forthe reasons that I gave about the amendment toClause 159, it would be inappropriate to introduce a provision of this type. Again, I underline that we believe it to be vital that the decisions made by the members of the court martial remain confidential. If members of the court martial knew that the decision that they made might be disclosed, even if only for research purposes, they might be unduly influenced, regardless of whether those researching matters are placed under the same duty of confidentiality as court members.
	The amendment does not specify which members' decisions might be the subject of such research, so it might therefore extend to the judge advocate's decisions. It would be highly inappropriate for the decisions made by the judge advocate to be disclosed for such purposes and would not reflect any practice adopted in the civilian criminal justice system.

Earl Attlee: I am grateful for the Minister's response to my amendments, but precautions are taken to ensure that panel members are not in the same chain of command as the accused. If the accused is in one division, the panel members cannot be in that division. There are obvious reasons for that. However, how can the accused be sure that members of the panel have not been specially selected to get the right result? How can he be confident of that?

Lord Drayson: The noble Earl raises an important point. I will reflect on that and consider how I can provide him with reassurances on that matter and write to him.

Lord Thomas of Gresford: The Minister called to his aid the views expressed by very senior members of the armed services when they gave evidence to the Select Committee. I hope that he will give more weight to the view of the Judge Advocate General, who was for many years a serving officer in the Royal Navy and reached the heights of being Judge Advocate for the Fleet before he became Judge Advocate General. So his daily experience of the courts martial system is not to be ignored—I do not suggest that the Minister is ignoring it, but there is a great deal of weight to his view. Let us take for example his answer to the Select Committee on the number of members of the panel. He was asked by Mr Robert Key:
	"You say: 'For such a small panel to try more serious matters and impose long prison terms is objectionable'. Why is it objectionable?".
	He replied:
	"Because it is too far removed from the civil system ... A panel of three, ie three lay magistrates, have a certain limit to their powers of punishment and this is so far removed that it seems to me objectionable for those reasons".
	There is a great deal of weight in that. Magistrates have the power of imprisonment of only six months, or perhaps 12 months in the case of consecutive sentencing, whereas the court-martial system, particularly if it is dealing with mandatory life sentences for murder cases and so on, has an almost unlimited power of imprisonment.
	Judge Blackett was then asked by Miss Vera Baird, who herself is a very experienced advocate, about same-service panels. His response was,
	"I think the premise upon which the Act is based is that there is a requirement for a single system of Service law because of operating patterns and more operating together and that sort of thing. If that is your initial premise then the panel membership should be a single system of Service law as well ... that is the logic of it. If you say no you need to have solely Army, solely Navy or solely Air Force panels then you are undermining your own argument for a single system of law".
	I fully commend that answer, which seems to make a great deal of sense. We are putting together a whole system of law, as the Minister has said today, that is not meant to draw distinctions between the various services. I put it to the Minister that he is advocating one-service panels only because of pressure from the services and their pride in the particular service to which they belong. That is not a good enough reason for continuing with the philosophy behind having a single-service legal system, which the Minister has outlined to us today.
	I am pleased that the Minister will reconsider the question of majority verdicts. I hope that he does, and if I can contribute by discussing the matter with him and others on such topics, I shall be delighted to do so before Report. This is a real opportunity to do something to bring the whole system up to date and to introduce a system of justice for members of the services that fits with the legal mores of the 21st century. There is too much harking back to the past in the services' opposition to change. It is natural; they are used to it. But we think that we should be looking at a broader picture to ensure that no serviceman can feel that he has not had a fair and just trial if he is convicted of a serious offence. For the moment, and pending further discussion, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 118 to 122 not moved.]
	Clause 154 agreed to.
	Clause 155 [Officers and warrant officers qualified for membership of the Court Martial]:
	[Amendments Nos. 123 to 125 not moved.]

Lord Drayson: moved Amendment No. 125A:
	Page 76, line 5, leave out "Supreme Court" and insert "Court of Judicature"
	On Question, amendment agreed to.
	Clause 155, as amended, agreed to.
	Clause 156 [Officers and warrant officers ineligible for membership in particular circumstances]:
	[Amendments Nos. 126 and 127 not moved.]
	Clause 156 agreed to.
	[Amendments Nos. 128 and 129 not moved.]
	Clauses 157 and 158 agreed to.
	Clause 159 [Decisions of Court Martial: finding and sentence]:
	[Amendment No. 130 not moved.]
	Clause 159 agreed to.
	[Amendment No. 131 not moved.]
	Clauses 160 and 161 agreed to.

Baroness Crawley: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at ten o'clock.